Eagle County, Colorado v. STB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 3, 2023 Decided August 18, 2023

No. 22-1019

EAGLE COUNTY, COLORADO,

PETITIONER

v.

SURFACE TRANSPORTATION BOARD AND UNITED STATES OF

AMERICA,

RESPONDENTS

SEVEN COUNTY INFRASTRUCTURE COALITION AND UINTA

BASIN RAILWAY, LLC,

INTERVENORS

Consolidated with 22-1020

On Petitions for Review of Orders

of the Surface Transportation Board

Nathaniel H. Hunt argued the cause and filed the briefs for

petitioner Eagle County, Colorado. Nicholas Clabbers entered

an appearance.

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Wendy Park argued the cause for petitioners Center for

Biological Diversity, et al. With her on the briefs was Edward

B. Zukoski. William J. Snape entered an appearance.

Matthew R. Arnold and William S. Eubanks II were on the

brief for amici curiae City of Glenwood Springs, et al. in

support of petitioners.

Barbara A. Miller, Attorney, Surface Transportation

Board, argued the cause for respondent. With her on the brief

were Craig M. Keats, General Counsel, and Theodore L. Hunt,

Associate General Counsel.

Justin D. Heminger, Attorney, U.S. Department of Justice,

argued the cause for respondent. With him on the brief were

Todd Kim, Assistant Attorney General, and Andrew M. Bernie,

Attorney.

Jay C. Johnson argued the cause for intervenor-

respondents Seven County Infrastructure Coalition, et al. With

him on the brief was Kathryn Kusske Floyd. Margaret K.

Fawal entered an appearance.

Melissa A. Holyoak, Solicitor General, Office of the

Attorney General for the State of Utah, was on the brief for

amicus curiae State of Utah in support of respondents.

Before: MILLETT, PILLARD and WILKINS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKINS.

WILKINS, Circuit Judge: These consolidated petitions

concern an order of the Surface Transportation Board (“Board”

or “STB”) authorizing the construction and operation of a new

rail line in the Uinta Basin in Utah (“Railway”). The Board

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exercised its authority to exempt the Railway from the Board’s

more extensive application requirements in a two-part process.

The first addressed the “transportation benefits” of the

Railway, and the second concerned the project’s environmental

impacts. As part of its environmental process, the Board

created an environmental impact statement (“EIS”) outlining

the various environmental impacts associated with the

Railway’s construction and operation. The EIS was informed

by the Board’s consultation with the Fish and Wildlife Service

(“Service”), which led to the development of a Biological

Opinion (“BiOp”) concerning the Railway’s potential impacts

on endangered species and critical habitats.

Petitioners include various environmental organizations

and a Colorado county that alleges it will be impacted by the

Railway even though it is located “downline” of the proposed

rail line’s construction area. Petitioners raised numerous

challenges at various stages in the proceedings, ranging from

whether the Board properly exempted the Railway to whether

its environmental analysis was flawed. In these petitions, they

lodge various challenges to the validity of the Board order, the

EIS, and the BiOp.

For the following reasons, we grant the petitions in part,

deny them in part, vacate the underlying order as well as the

EIS and the BiOp in part, and remand to the Board for further

proceedings.

I.

A.

Congress gave jurisdiction over rail carriers to the Board

after passing the ICC Termination Act of 1995, Pub. L. No.

104–88, 109 Stat. 803 (“ICCT Act”), which abolished the

Board’s predecessor, the Interstate Commerce Commission

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(“ICC”). See Nat’l Ass’n of Reversionary Prop. Owners v.

STB, 158 F.3d 135, 140 (D.C. Cir. 1998). The Board regulates,

among other things, “the sale and transfer of rail lines under

49 U.S.C. § 10901, [including] governing construction and

operation of railroad lines.” Ass’n of Am. R.R.s v. STB, 161

F.3d 58, 60 (D.C. Cir. 1998).

There are two approaches a party can take to get approval

from the Board for the construction or operation of a railroad

line. The party may seek a certificate authorizing the project

from the Board by “submit[ting] an application that provides

information about itself and its proposed use of the line,

including operational, financial, environmental, and energy

data.” Snohomish Cnty. v. STB, 954 F.3d 290, 293 (D.C. Cir.

2020). “Upon receiving the application and providing time for

public comment, the Board issues the certificate, potentially

with modifications or conditions, ‘unless the Board finds that

such activities are inconsistent with the public convenience and

necessity.’” Id. (quoting 49 U.S.C. §§ 10901(c), 10902(c)).

Alternatively, the party may seek an exemption from the full

application requirements by petitioning the Board to find that

“compliance with those provisions ‘is not necessary to carry

out the transportation policy’ codified in 49 U.S.C. § 10101,

and that either the ‘transaction or service is of limited scope’ or

the ‘application in whole or in part of the provisions is not

needed to protect shippers from the abuse of market power.’”

Id. at 293–94 (quoting 49 U.S.C. § 10502(a)(1)–(2)).

In addition, the National Environmental Policy Act

(“NEPA”), 42 U.S.C. § 4321 et seq., requires all federal

agencies “to examine the environmental effects of proposed

federal actions and to inform the public of the environmental

concerns that were considered in the agency’s

decisionmaking.” Citizens Against Rails-to-Trails v. STB, 267

F.3d 1144, 1150 (D.C. Cir. 2001). This environmental review

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process requires federal agencies to “include a detailed

environmental impact statement . . . ‘in every recommendation

or report on . . . major Federal actions significantly affecting

the quality of the human environment.’” Mayo v. Reynolds,

875 F.3d 11, 15 (D.C. Cir. 2017) (quoting 42 U.S.C.

§ 4332(2)(C)). Since “NEPA’s mandate is addressed to all

federal agencies,” it applies also to the Board’s determinations

regarding the construction or operation of rail lines that may

affect the environment. Citizens Against Rails-to-Trails, 267

F.3d at 1150.

Federal agencies have additional environmental review

obligations under the Endangered Species Act (“ESA”), 16

U.S.C. § 1531 et seq., which Congress enacted “to provide a

means whereby the ecosystems upon which endangered

species and threatened species depend may be conserved,” id.

§ 1531(b). “The ESA requires every federal agency to ‘insure

that any action authorized, funded, or carried out by such

agency . . . is not likely to jeopardize the continued existence

of any endangered species or threatened species or result in the

destruction or adverse modification of habitat’ that the . . .

Service[] ha[s] determined to be critical to those species.” Ctr.

for Biological Diversity v. EPA (“Center II”), 56 F.4th 55, 62

(D.C. Cir. 2022) (quoting 16 U.S.C. § 1536(a)(2)). To fulfill

this statutory obligation, “action agencies,” “whose planned

action may have such effect,” must consult with the Service,

which is tasked with, among other things, identifying

“anticipated adverse effects on species” and critical habitats.

Id. at 62–63 (citing 16 U.S.C. § 1536(a)–(d)).

Prior to approving “a project, activity, or program,” 54

U.S.C. § 300320, federal agencies must also “take into account

the effect of the undertaking on any historic property” under

the National Historic Preservation Act (“NHPA”), id. at

§ 306108. The statute defines “historic property” broadly and

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includes “any prehistoric or historic district, site, building,

structure, or object included on, or eligible for inclusion on, the

National Register.” Id. § 300308. The NHPA mandates the

creation of regulations to ensure that federal agencies consult

with local governments “with respect to undertakings . . . that

affect the local governments.” Id. § 304108(b). “In light of the

substantial overlap between the NHPA and NEPA inquiries, an

EIS ‘should include consideration of the . . . likely effects on

historic properties.’” Oglala Sioux Tribe v. U.S. Nuclear

Regul. Comm’n (“Oglala”), 45 F.4th 291, 296 (D.C. Cir. 2022)

(quoting 36 C.F.R. § 800.8(a)(1)).

B.

Respondent-Intervenor Seven County Infrastructure

Coalition (“Coalition”) “is an independent political subdivision

of the State of Utah” composed of seven different member

counties. J.A. 252. On May 29, 2020, the Coalition petitioned

the Board to allow for the construction and operation of the

Railway, see id. at 248, a more than 80-mile rail line in Utah

that would connect “two termini in the Uinta Basin . . . to the

national rail network at Kyune, Utah,” id. at 251. The Uinta

Basin is an “approximately 12,000 square mile[]” geographic

area spanning northeastern Utah and northwestern Colorado.

Id. at 279. It “contains extensive deposits of valuable minerals,

including” phosphate, “crude oil, natural gas, oil shale, oil

sands, gilsonite, natural asphalt, aggregate materials, and low-

sulfur coal.” Id. at 280.

In its petition, the Coalition explained that “[c]urrently,

trucking is the only mode of freight transportation in and out of

the Basin” “primarily due to the geography of the Basin, which

is bounded by high mountains or plateaus.” Id. Railway lines

exist around the Basin but there are not even “freeways in and

out of the Basin.” Id. Accordingly, “all goods produced or

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consumed in the Basin must be transported by trucks on two-

lane highways that cross high mountain passes.” Id. The

Railway would “connect the Uinta Basin to the national rail

network,” “giv[ing] shippers an additional option for freight

transportation in and out of the Uinta Basin.” Id. at 285. The

project would involve “construction of the rail line and

associated earthwork” as well as “construction of access roads,

tunnels, communications towers, road crossings, culverts, and

stream crossings.” Id. at 255. Though the Railway could carry

any goods produced or consumed in the Basin, the Coalition’s

petition recognizes (and no one disputes) that the Railway’s

predominant and expected primary purpose would be the

transport of waxy crude oil produced in the Uinta Basin. See

id. at 260–61.

In its petition, the Coalition also provided that it “entered

into a preliminary Memorandum of Understanding” with two

private companies—Drexel Hamilton Infrastructure Partners

and Rio Grande Pacific Corporation—which would be

responsible for “financing and commercialization of the

Project” and “operations and maintenance of the Uinta Basin

Railway,” respectively. Id. at 253. Though the Coalition did

not intend to operate the Railway itself, it expected that it

would “remain responsible for project planning, completion of

the environmental review and permitting processes, and

obtaining authority to construct the Railway.” Id. at 253–54.

The May 2020 petition made two requests of the Board.

First, the Coalition sought exemption from the Board’s formal

application requirements. Second, the Coalition asked the

Board to authorize the Railway in a two-part process. The

Board would “conditionally approve” the exemption petition

based on the transportation merits of the Railway, subject to the

condition that the project was found proper after the

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“completion of the environmental review process under the

National Environmental Policy Act.” Id. at 273.

The Coalition asserted that the “ongoing COVID-19

pandemic and its economic impacts clearly create[d] unique

and compelling circumstances that justif[ied] conditional

approval.” Id. It described the impacts as including rising

unemployment levels, closed businesses, and substantial

decline in state and local tax revenues. Id. at 273–74. While

noting that “these impacts should not persist in the long-term,”

the Coalition asserted that completion of the “federal review

and approval processes as efficiently as possible” would “have

the potential to provide substantial economic stimulation,”

which it described as “important to state and local economies.”

Id. at 274. Finally, the Coalition asserted that the

environmental review process was ongoing and “should not

interfere with consideration of the transportation merits on a

conditional basis.” Id.; see also id. at 265 (explaining that the

Board released a final scope of study for preparation of an

environmental impact statement on December 13, 2019).

Several groups filed oppositions to the exemption petition,

urging the Board to require the Coalition to complete the full

application process. See id. at 300, 329 (Center for Biological

Diversity Response to Petition for Exemption); see also, e.g.,

J.A. 341–47 (Argyle Wilderness Preservation Alliance

Response to Petition for Exemption); Opening Br. of Pet’r

Eagle County 6 [hereinafter “Cnty. Br.”]. These oppositions

questioned the Railway’s financial viability, purported

benefits, and “impact to public health, safety, and the

environment.” Cnty. Br. 5. The oppositions were

unsuccessful. The Board published an order conditionally

granting the exemption petition based on the “transportation

merits” while deferring its “final” ruling on the petition to

allow for the completion of the then-ongoing review of the

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Railway’s environmental impact. Seven Cnty. Infrastructure

Coal.—Rail Constr. & Operation Exemption—in Utah,

Carbon, Duchesne, & Uintah Cntys., S.T.B. Fin. Docket

36284, 2021 WL 41926, at *10 (STB served Jan. 5, 2021)

[hereinafter “Preliminary Exemption Order”]. Petitioners

sought reconsideration of the Preliminary Exemption Order,

which the Board denied on September 30, 2021. See Seven

Cnty. Infrastructure Coal.—Rail Constr. & Operation

Exemption—in Utah, Carbon, Duchesne, & Uintah Cntys.,

S.T.B. Fin. Docket 36284, 2021 WL 4483773 (STB served

Sept. 30, 2021).

As noted above, the environmental review process for the

Railway was ongoing at the time the Board requested

conditional approval of its exemption petition. The Board’s

Office of Environmental Analysis (“OEA”) had published a

notice of intent to prepare an Environmental Impact Statement

in June 2019 and issued a final scope of study for the EIS in the

Federal Register in December 2019. See Seven Cnty.

Infrastructure Coal.—Rail Constr. & Operation—in Utah,

Carbon, Duchesne, and Uintah Cntys., 84 Fed. Reg. 68,274

(Dec. 13, 2019). On October 30, 2020, the Board published its

Draft EIS for review and comment. Public comment on the

Draft EIS lasted until February 12, 2021, and included six

public online meetings and the Board’s receipt of over 1,900

comments. See J.A. 802.

In the Draft EIS, “the Board determined that there were

three reasonable Action Alternatives (the Indian Canyon

Alternative, Wells Draw Alternative, Whitmore Park

Alternative), with the Whitmore Park Alternative identified as

the Preferred Alternative.” Br. of Resp’t Surface Transp. Bd.

11 [hereinafter “Board Br.”]; see also J.A. 445, 452. The

Board issued the Final EIS in August 2021, determining that

“the Whitmore Park Alternative would result in the fewest

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significant impacts on the environment.” J.A. 874.

Supplemental comments were submitted to the Board,

including objections by Petitioner Center for Biological

Diversity (“Center”) and supporting statements from the Ute

Indian Tribe and the State of Utah. See, e.g., J.A. 1321–22

(Center for Biological Diversity Supplemental Comments);

J.A. 1315–17 (Ute Indian Tribe Supplemental Comments); see

also Board Br. 14.

The Board issued its final decision accepting the

Coalition’s exemption petition and “authorizing construction

and operation of the Whitmore Park Alternative subject to

extensive environmental mitigation conditions” in December

2021. See Board Br. 14; see also Seven Cnty. Infrastructure

Coal.—Rail Constr. & Operation Exemption—in Utah,

Carbon, Duchesne, & Uintah Cntys., S.T.B. Fin. Docket

36284, 2021 WL 5960905 (STB served Dec. 15, 2021)

[hereinafter “Final Exemption Order”]. The Final Exemption

Order incorporated the final EIS to weigh the project’s

transportation merits against its environmental impacts.

The Final Exemption Order relied on the BiOp the Service

issued on September 20, 2021, which it based on the Board-

defined action area for considering the expected environmental

impact of the project on protected species and their designated

critical habitat. See Final Exemption Order, 2021 WL

5960905, at *5, *10. That action area was limited to the project

footprint, a 300-foot buffer around it, and “an area of the Upper

Colorado River Basin affected by water depletions” from the

project. J.A. 1660. The Board’s final decision stated that the

construction and operation of the Railway could have “major

impacts” on water resources, air quality, special status species

like the greater sage-grouse, land use and recreation, local

economies, cultural resources, and the Ute Indian tribe, as well

as “minor impacts” on vehicle safety and delay, rail operations

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safety, big game, fish and wildlife, vegetation, and geology in

the Uinta Basin. Final Exemption Order, 2021 WL 5960905,

at *7–13. The Board also conducted a geological analysis of

the project area to evaluate the risk that construction and

operation of the proposed rail line could cause landslides or

other geologic movements.

As for climate effects, the Board noted that, “[t]o the extent

that the crude oil would be refined into fuels that would be

combusted to produce energy, emissions from the combustion

of the fuels would produce [greenhouse gas] emissions that

would contribute to global warming and climate change,”

which, under a “high oil production scenario could represent

up to approximately 0.8% of nationwide [greenhouse gas]

emissions and 0.1% of global [greenhouse gas] emissions.” Id.

at *17.

The Board’s order also considered whether to disclose

“impacts from rail operations along existing rail lines

segments” from “[t]rains originating or terminating on the

proposed rail line,” id. at *11, known as “downline impacts,”

see id. at *18–20; J.A. 1230 (defining “downline impacts”). Its

environmental analysis found that the majority of trains

originating or terminating on the Railway would travel on the

Union Pacific Railroad Company (“Union Pacific”) rail line

heading east to Denver, Colorado. See Final Exemption Order,

2021 WL 5960905, at *20. But the Board determined that it

need not consider various downline effects—on vehicle safety

and delay, rail safety, noise and vibration, and air quality and

greenhouse gases—on the ground that “minimal increases in

train traffic on existing rail lines over which trains already

operate are unlikely to cause significant impacts.” Id. at *18.

The Board also did not disclose other environmental

effects. It omitted the effects of increased crude oil refining on

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Gulf Coast communities in Louisiana and Texas already

overburdened by pollution from refining. Id. at *19. It omitted

upline impacts on vegetation or special status species of

increased drilling in the Uinta Basin. See id. at *15–18. And it

omitted downline effects of projected increases in spills and

accidents from additional oil trains traveling the existing Union

Pacific rail line alongside the Colorado River—including

effects on water, special status species or habitats, and

recreation and land use. See id. at *13. Finally, the Board did

not disclose potential effects of the project on historic sites or

structures along the Union Pacific line in Eagle County that the

County’s brief asserted might be eligible for inclusion on the

National Register of Historic Places. See id. at *21.

Petitioner Eagle County (“County”) filed a petition in our

Court for review of the Board’s Preliminary Exemption Order

and Final Exemption Order on February 10, 2022, and the

Center filed a separate petition for review of the Final

Exemption Order and the Service’s BiOp on February 11,

2022. This Court consolidated the two petitions on

February 11, 2022.

Petitioners assert violations of several interrelated statutes

and various procedural requirements enacted to ensure

agencies consider the possible adverse impacts associated with

the approval of projects like the Railway. Petitioners both

argue that the Board failed to take a hard look at the Railway’s

environmental impacts in violation of NEPA. The County

claims the Board violated the NHPA by failing to consult the

County on the Railway and to evaluate the impact of the project

on historic properties downline. The Center raises separate

challenges under the ESA regarding the Board’s reliance on the

Service’s BiOp, which adopted the proposed action area as

defined by the Board’s Office of Environmental Analysis, and

the validity of the BiOp itself. Finally, Petitioners both assert

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that the Board erred in exempting the Railway from the ICCT

Act’s full application process.

II.

We begin, as we must, with questions of our jurisdiction.

See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93–96

(1998). We find that Petitioners have demonstrated Article III

standing for each of the challenges raised and established

statutory jurisdiction under the Hobbs Act.

A.

“[S]tanding has three parts: injury in fact, causation, and

redressability.” Util. Workers Union of Am. Loc. 464 v. FERC,

896 F.3d 573, 577 (D.C. Cir. 2018). “Standing is not dispensed

in gross,” Davis v. FEC, 554 U.S. 724, 734 (2008) (quoting

Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996)), so Petitioners

must prove standing “for each claim [they] seek[] to press,” id.

(quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352

(2006)). Petitioners both claim that the Final Exemption Order

violates the ICCT Act and NEPA. The County separately

argues that the order violates the NHPA, and the Center asserts

a separate ESA challenge regarding the BiOp.

Given our “duty to assure ourselves of our jurisdiction,”

we will begin with the ICCT Act and NEPA claims, which are

raised by both Petitioners, and then address the NHPA claims

as raised by the County before turning to the Center’s ESA

claim. Kaplan v. Cent. Bank of the Islamic Republic of Iran,

896 F.3d 501, 509 (D.C. Cir. 2018).

1.

The County alleges a procedural injury—namely, that the

Board should not have engaged in a two-step approval process,

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should have considered additional Rail Policies under the ICCT

Act and environmental risks under NEPA, and should have

consulted with the County on potential impacts to downline

historic properties. Accordingly, the County must demonstrate

that the Board’s decision to disregard these procedural

requirements “impair[ed] a separate concrete interest of [the

County].” City of Dania Beach v. FAA, 485 F.3d 1181, 1185

(D.C. Cir. 2007) (quoting Lujan v. Defs. of Wildlife,

504 U.S. 555, 572 (1992)).

“The two things are not one and the same. [The County]

must show both (1) that [its] procedural right has been violated,

and (2) that the violation of that right has resulted in an

invasion of [its] concrete and particularized interest.” Ctr. for

L. & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1159 (D.C. Cir.

2005) (emphasis in original). “[I]n cases in which a party ‘has

been accorded a procedural right to protect his concrete

interests,’ the primary focus of the standing inquiry is not the

imminence or redressability of the injury to the plaintiff, but

whether a plaintiff who has suffered personal and

particularized injury has sued a defendant who has caused that

injury.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 664

(D.C. Cir. 1996) (en banc) (quoting Lujan, 504 U.S. at 572 n.7).

For purposes of the standing analysis, the Court “must

assume that [the County] will prevail on the merits of [its]

claims.” City of Jersey City v. Consol. Rail Corp., 668 F.3d

741, 744 (D.C. Cir. 2012). The County contends that the Board

departed from its prior precedent and therefore violated the

Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2), in

granting the Coalition’s request for preliminary exemption

contingent upon a later determination of the environmental

impacts of the Railway. See Cnty. Br. 18. It also argues that

the Board failed to consider “all pertinent Rail Policies” in

granting the exemption, id. at 19, and “arbitrarily applied” the

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Rail Policies it did consider, id. at 24. As to its NEPA

challenges, the County asserts that the Board failed seriously

to consider numerous adverse effects of the Railway downline,

including the increased risk of wildfires and impacts on water

resources and other biological resources due to concededly

increased rail traffic. The County also states that the Board did

not consult with it or otherwise consider impacts on historic

properties downline as required by the NHPA. Taking these

allegations as fact, the County has demonstrated that the

Board’s Preliminary and Final Exemption Orders constitute “a

violation of the procedural requirements” of the ICCT Act,

NEPA, and NHPA. City of Dania Beach, 485 F.3d at 1185.

Turning to the second requirement to demonstrate a

procedural injury, we have previously recognized that

“financial harm alleged by [a] [t]own and the infringement of

its property interests” can substantiate standing. City of Bos.

Delegation v. FERC, 897 F.3d 241, 250 (D.C. Cir. 2018).

Similarly, the Court has found that a town has a concrete

interest in avoiding “increased traffic, noise, and disruption of

businesses” and has held that “the presence of a continuing

safety hazard caused by the nearby installation of a natural gas

pipeline can establish an injury in fact.” Id. (quotation marks

omitted). The County asserts that property in the County could

be destroyed should the Railway lead to a “wildfire in Eagle

County due to both an increased number of trains and highly

flammable cargo.” Shroll Decl. 9 ¶ 22, Cnty. Br. Ex. 1. It also

notes that “the significant increase in rail traffic caused by the

Railway” may impact historic sites with adverse “noise,

vibrations, and visual effects.” Id. at 10 ¶ 23. This is sufficient

to establish that the Board’s alleged disregard for the relevant

procedural requirements caused an injury to the County’s

“concrete and particularized interest[s].” Ctr. for L. & Educ.,

396 F.3d at 1159.

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To establish causation, the County must demonstrate “two

causal links: ‘one connecting the omitted procedural step to

some substantive government decision that may have been

wrongly decided because of the lack of that procedural

requirement and one connecting that substantive decision to the

plaintiff’s particularized injury.’” Ctr. for Biological Diversity

v. EPA (“Center I”), 861 F.3d 174, 184 (D.C. Cir. 2017)

(quoting Fla. Audubon Soc’y, 94 F.3d at 668). Regarding the

first link, the County does not need to show “that but for the

alleged procedural deficiency the agency would have reached

a different substantive result,” id., but, instead, “[a]ll that is

necessary is to show that the procedural step was connected to

the substantive result.” Id. (quoting Sugar Cane Growers Co-

op. of Fla. v. Veneman, 289 F.3d 89, 94–95 (D.C. Cir. 2002)).

As to the second link, the County need not “establish the merits

of its case, i.e., that [its injury] has in fact resulted from the

[Board’s] procedural failures,” but rather the County must

“demonstrate that there is a ‘substantial probability’” that the

agency’s action will cause the injury. Id. (quoting Am.

Petroleum Inst. v. EPA, 216 F.3d 50, 63 (D.C. Cir. 2000) (per

curiam)).

The County demonstrates both causal links. The Board’s

alleged failure to follow the procedural requirements of the

ICCT Act, NEPA, and NHPA are “plainly ‘connected to’ its”

“substantive government decision” to exempt the Railway. Id.

If we take the County’s allegations as true, the Board granted

the exemption without considering various environmental

impacts and effects on historic properties downline and, partly

as a result of those procedural omissions, the Board failed to

properly consider the relevant Rail Policies of the ICCT Act.

Accordingly, the first causal link is established. The County’s

declaration also explains that the Railway will increase the

number of trains that travel downline. See Shroll Decl. 7–8,

¶ 19. The County therefore demonstrates the second causal

17

link, because there is a substantial probability that this

“significant increase in rail traffic,” id. at 9 ¶ 22, will increase

the risk of train derailments, oil spills, wildfires, and the related

adverse effects on resources and historic properties downline.

The redressability requirement is relaxed for procedural-

rights plaintiffs like the County. Center I, 861 F.3d at 185. The

County must only show that the Board “could reach a different

conclusion” if it revisited the order, id. (emphasis in original),

and it has met this relatively low burden. Even if there were a

“serious possibility . . . that the [Final Exemption Order] would

remain unchanged following” the Board’s revisiting of its

determination process, “there remains at least the possibility

that it could reach a different conclusion—say, by modifying

the [Final Exemption Order].” Id. (quotation marks omitted).

Accordingly, the County has demonstrated standing to

challenge the Board’s orders under the ICCT Act, NEPA, and

the NHPA, and so we need not consider the Center’s standing

to bring those same claims. See Env’t Action v. FERC, 996

F.2d 401, 406 (D.C. Cir. 1993) (“[O]nce one petitioner has

demonstrated standing[,] [the Court] may permit the

participation of others[.]”).

2.

The Center must separately demonstrate that it has

standing to challenge the BiOp and the Board’s reliance upon

it. It asserts that it satisfies the test for associational standing,

which requires the Center to establish that “(1) at least one of

its members would have standing to sue in his own right; (2)

the interest it seeks to protect is germane to its purpose; and (3)

neither the claim asserted nor the relief requested requires the

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member to participate in the lawsuit.” Center I, 861 F.3d at

182 (quotation marks omitted).

The Center’s alleged injury arises from the Service’s

“procedural omissions,” namely “its failure to make an effects

determination” as to endangered fish in the Colorado River and

its tributaries whose existence might be jeopardized, or critical

habitat modified, by the Railway since it is expected to increase

rail traffic on the river-adjacent Union Pacific Line. Id. at 183.

As a “procedural-rights plaintiff,” the Center must demonstrate

“that the failure to make an effects determination . . . affects its

members’ concrete aesthetic and recreational interests.” Id.

As the Center provides, one of its members, John

Weisheit, is an avid rafter of the affected waterways that are

the “critical habitat for the four Colorado River endangered

fish” at issue: the Colorado pikeminnow, razorback sucker,

humpback chub, and bonytail chub. See Addendum to Center

Br. 103. He also notes that he “derive[s] great enjoyment from

viewing rare species in their natural environment and [is]

constantly on the lookout for . . . federally listed endangered

and threatened species.” Id. at 97. Weisheit states that “[i]t

breaks [his] heart and angers and depresses [him] to see the

fish” who have died or otherwise been exposed to pollution,

noting that he “feel[s] spiritual harm when [he] see[s] dead fish

on the water.” Id. at 108–09. His declaration establishes he

has a “plan to use the allegedly degraded environmental area in

question” and that he will suffer “aesthetic injuries” from

“viewing the despoliation of animals.” Animal Legal Def.

Fund, Inc. v. Glickman, 154 F.3d 426, 435 (D.C. Cir. 1998)

(en banc) (quoting Humane Soc’y of the U.S. v. Hodel, 840 F.2d

45, 52 (D.C. Cir. 1988)). This is sufficient to establish an

injury-in-fact for standing purposes.

19

The Center also demonstrates the two required causal links

to establish causation.

The Center demonstrates the first causal link because “the

[Service’s] failure to make an effects determination . . . is

plainly ‘connected to’ its” conclusion in the BiOp, Center I,

861 F.3d at 184, that the Railway “is not likely to jeopardize

the continued existence of Colorado River fishes or result in

destruction or adverse modification of designated critical

habitat,” J.A. 1696. This “omitted procedural step” is also

directly connected to the Board’s “substantive government

decision” to exempt the Railway since its orders relied on the

BiOp. Center I, 861 F.3d at 184.

As to the second link, the Center points to both record

evidence and a supplemental affidavit to show that there is

“substantial probability” that the Railway will adversely affect

local conditions and harm its members’ interests. Id. The

BiOp notes that “[o]peration of the rail line may release

pollutants that negatively affect ESA-listed plant species,”

J.A. 1687, which the Center explains “will not suddenly cease

once oil trains transfer to the national rail network downline of

the Railway,” Ctr. Reply Br. 20. The Center also references

the EIS’s explanation that there would be an increased risk of

train accidents in the downline area given the increased traffic,

with the potential of causing “loaded oil trains derailing”

resulting in an oil spill “[r]oughly once every four years.” Id.

at 20 (citing J.A. 899, 1201). As the Center provides, these

leaks could occur on rail lines that parallel “roughly 233 miles”

of the Colorado River. Id. at 21.

In Center I, the Court noted that the EPA’s belief that an

insecticide it authorized would “provide significant benefits to

growers” “ma[de] it likely—that is, [gave] rise to a substantial

probability—that the EPA’s registration of the pesticide

20

[would] in fact create a demonstrable risk to the Center

members’ interests” since the growers’ crops overlapped with

the habitat of a protected species. 861 F.3d at 185 (quotation

marks and citation omitted). Similarly, here, the Board

believes that the Railway’s “construction and operation” would

lead to “substantial transportation and economic benefits”

given opportunities for transporting more oil out of the Basin.

Final Exemption Order, 2021 WL 5960905, at *23. Under the

logic of Center I, it follows that there is “substantial

probability” that endangered fish in the Colorado River parallel

to the downline rail line would be impacted by the Railway

given the recognized risk of oil leaks and spills associated with

the increased operation of trains carrying oil products. This

would harm the aesthetic interests of the Center’s members and

is sufficient to demonstrate the second causal link necessary to

establish causation.

The relaxed redressability requirement is also met, as the

Board or Service may modify the Final Exemption Order or

BiOp, respectively, after revisiting the effects determination.

Center I, 861 F.3d at 185. Since the Center has established

standing for at least one of its members, and support for the

remaining requirements is readily apparent, the Center also has

standing to challenge the BiOp in this petition.

B.

The Court has jurisdiction to review final orders of the

Board “under the Hobbs Act, which allows ‘any party

aggrieved by a final order’ to, ‘within 60 days after its entry,

file a petition to review the order in the court of appeals

wherein venue lies.’” Snohomish Cnty., 954 F.3d at 298 (citing

28 U.S.C §§ 2321(a), 2342(5), and 2344). The Final

Exemption Order was issued on December 15, 2021, making

Petitioners’ February 10, 2022, and February 11, 2022,

21

petitions for review of that order timely. As discussed above,

both the Center and the County have standing so they “ha[ve]

met the statutory requirement of aggrievement,” so the

remaining question is if they can be considered “part[ies].”

Water Transp. Ass’n v. ICC, 819 F.2d 1189, 1193 (D.C. Cir.

1987).

To achieve party status under the Hobbs Act, one must

“have participated in the proceeding before the [Board].” Id.

at 1192. “The degree of participation necessary to achieve

party status varies according to the formality with which the

proceeding was conducted.” Id. Accordingly, “[w]hen

intervention in agency adjudication or rulemaking is

prerequisite to participation therein,” only those who sought to

intervene will have standing under the Hobbs Act. Id. In more

informal administrative proceedings, “party status has been

found when the petitioner has made a full presentation of views

to the agency.” Id. at 1193. For example, in Water Transport

Association, this Court held that in a proceeding in which the

agency “did not call for formal intervention” and “instead . . .

solicited general protests of its [action],” the petitioners’

submission of a protest was sufficient to be conferred party

status. Id.

Here, the administrative proceedings were informal.

While the Board did set a deadline for reply comments on the

exemption petition and requested public comment as part of the

EIS process, it never required interested parties to intervene in

the exemption proceedings or take any action of similar

formality. See J.A. 293, 802. The Center, along with others,

replied to the exemption petition, actively participated in the

EIS proceedings, and submitted a petition for rehearing of the

Final Exemption Order. The County also provided comments

in the EIS proceedings and submitted a petition for rehearing

of the Board’s order. The participation of both the County and

22

the Center was sufficient for each to be considered a party

under the Hobbs Act.

The parties agree that the Court also has jurisdiction to

review the BiOp since it was “incorporated” into, or at least

relied on in, the Final Exemption Order. Board Br. 1–2 (citing

City of Tacoma v. FERC (“Tacoma II”), 460 F.3d 53, 76 (D.C.

Cir. 2006)); see also Opening Br. of Pet’rs Ctr. for Biological

Diversity, et al. 1–2 [hereinafter “Center Br.”] (citing Tacoma

II, 460 F.3d at 76). While we have not yet specifically

addressed whether we may directly review a biological opinion

prepared during a Surface Transportation Board proceeding, it

follows from our precedent involving other agencies that we

have jurisdiction to review a biological opinion where, as here,

that opinion was prepared during a proceeding over which this

court has exclusive appellate jurisdiction. See Tacoma II, 460

F.3d at 76; In re Pub. Emps. for Env’t. Responsibility, 957 F.3d

267, 272 (D.C. Cir. 2020).

In several cases concerning challenges to licensing orders

by the Federal Energy Regulatory Commission (“FERC”), we

have found that “when a BiOp is prepared in the course of a

FERC licensing proceeding, the only means of challenging the

substantive validity of the BiOp is on review of FERC’s

decision in the court of appeals.” Tacoma II, 460 F.3d at 76;

see also Shafer & Freeman Lakes Env’t Conservation Corp. v.

FERC, 992 F.3d 1071, 1087 (D.C. Cir. 2021); Am. Rivers v.

FERC, 895 F.3d 32, 45 (D.C. Cir. 2018). This approach stems

from the “well-established” rule that “when two jurisdictional

statutes draw different routes of appeal” courts “apply only the

more specific legislation.” Center I, 861 F.3d at 186 (quoting

Ctr. for Biological Diversity v. EPA, 847 F.3d 1075, 1089 (9th

Cir. 2017)). As this Court has recognized, “when jurisdiction

to review administrative determinations is vested in the courts

of appeals these specific, exclusive jurisdiction provisions

23

preempt district court jurisdiction over related issues under

other statutes.” Media Access Project v. FCC, 883 F.2d 1063,

1067–68 (D.C. Cir. 1989) (quoting Connors v. Amax Coal Co.,

858 F.2d 1226, 1231 (7th Cir. 1988)). This decreases “[t]he

likelihood of duplication and inconsistency” that may occur if

the BiOp was reviewed separately by the District Court while

the primary agency order was reviewed under the exclusive

jurisdiction of the appeals court. City of Rochester v. Bond,

603 F.2d 927, 936 (D.C. Cir. 1979).

Here, as with our review of FERC’s licensing orders, see

16 U.S.C. § 825l(b), the Hobbs Act limits review of the Board’s

exemption orders to the court of appeals, see 28 U.S.C.

§ 2321(a) (“Except as otherwise provided by an Act of

Congress, a proceeding to enjoin or suspend, in whole or in

part, a rule, regulation, or order of the Surface Transportation

Board shall be brought in the court of appeals[.]”).

Accordingly, “the specific provisions of the [Hobbs Act] that

govern review of disputes concerning the [Board’s orders]

must preempt the general procedures for ESA and APA claims

brought under general federal question jurisdiction.” City of

Tacoma v. Nat’l Marine Fisheries Serv. (“Tacoma I”), 383 F.

Supp. 2d 89, 92 (D.D.C. 2005) (citing Media Access Project,

883 F.2d at 1067; Cal. Save Our Streams Council, Inc. v.

Yeutter, 887 F.2d 908, 911 (9th Cir. 1989); City of Rochester,

603 F.2d at 936). Since the Board relied upon the BiOp in

making its determination to exempt the Railway, this Court

“has jurisdiction to review not only the [Board’s] order

[exempting the Railway], but also the Service’s Biological

Opinion that was prepared in the course of the [Board’s]

[exemption] proceeding.” Shafer, 992 F.3d at 1087.

24

III.

We review the orders of the Surface Transportation Board

exempting proposed rail projects from the Board’s full

application process “under the Administrative Procedure Act,

examining whether the agency’s action was ‘arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.’” Snohomish Cnty., 954 F.3d at 301

(quoting 5 U.S.C. § 706(2)(A)). The same standard applies to

the review of the EIS, the challenges brought under NHPA, and

our review of the BiOp. See United Keetoowah Band of

Cherokee Indians in Okla. v. FCC, 933 F.3d 728, 738 (D.C.

Cir. 2019); see also Tacoma II, 460 F.3d at 75–76.

We begin with Petitioners’ challenges to the

environmental review process and end with the objections to

the Board’s exemption order itself since the Board relied in

large part on the review process in making its final

determination.

A.

Petitioners raise numerous objections under NEPA

regarding the Board’s environmental review of the Railway.

To fulfill their obligations under NEPA, “agencies must take a

‘hard look’ at the environmental consequences of their actions,

and provide for broad dissemination of relevant environmental

information.” Pub. Emps. for Env’t Resp. v. Hopper

(“PEER”), 827 F.3d 1077, 1082 (D.C. Cir. 2016) (cleaned up)

(quoting Robertson v. Methow Valley Citizens Council, 490

U.S. 332, 350 (1989)). Here, the Board assessed the

environmental impacts of the Railway under pre-2020

regulations promulgated by the Council on Environmental

Quality (“CEQ”), a division within the Executive Office of the

President that was “established by NEPA with authority to

25

issue regulations interpreting it.” Dep’t of Transp. v. Pub.

Citizen, 541 U.S. 752, 757 (2004).

The CEQ “regulations require an agency to evaluate

cumulative impacts along with the direct and indirect impacts

of a proposed action.” TOMAC, Taxpayers of Mich. Against

Casinos v. Norton, 433 F.3d 852, 864 (D.C. Cir. 2006)

(quotation marks omitted). Cumulative impacts are “the

impact[s] on the environment which result[] from the

incremental impact of the action when added to other past,

present, and reasonably foreseeable future actions regardless of

what agency (Federal or non-Federal) or person undertakes

such other actions.” 40 C.F.R. § 1508.7 (2019). Indirect

impacts “are caused by the action and are later in time or farther

removed in distance, but are still reasonably foreseeable.” Id.

§ 1508.8(b) (2019). Direct impacts “are caused by the action

and occur at the same time and place.” Id. § 1508.8(a).

While we disagree with many of Petitioners’ objections,

we ultimately find that the EIS failed to demonstrate that the

Board took the requisite “hard look” at all of the environmental

impacts of the Railway. With this background, we address

each of Petitioners’ NEPA challenges in turn.

1.

Many of Petitioners’ arguments challenge the Board’s

cumulative impacts analysis. For that analysis, the “OEA

identified 27 relevant projects” that it “conclude[d] . . . in

combination with the impacts of construction and operation of

the [Railway] could result in cumulative adverse impacts on

water resources, biological resources, paleontological

resources, land use and recreation, visual resources, and

socioeconomics.” Final Exemption Order, 2021 WL 5960905,

at *15. Separate from those 27 projects, “OEA’s cumulative

impacts assessment also include[d] an analysis of potential

26

future oil and gas development in the Basin and the potential

future construction and operation of new rail terminal facilities

near Myton and Leland Bench, Utah,” id. at *16, including the

effects that oil production in the Basin could have on road

traffic and vehicle safety, air quality near oil-producing wells,

greenhouse gas emissions from the eventual combustion of

crude oil transported on the Railway, and long-term

employment and commercial activity, id. at *16–18.

The Board concluded that increased oil drilling in the

Basin and the construction of new railway terminals could

worsen local roadway congestion but would not meaningfully

increase the risk of traffic accidents. Id. It disclosed the

potential for air pollutant emissions from the construction,

operation, and maintenance of oil wells in the Basin to affect

local air quality. Id. Under the heading of cumulative impacts,

the Board also discussed the “[d]ownstream end use emissions

associated with the combustion of the crude oil that could be

transported on the Line” and the potential for Uinta Basin oil

production “to generate long-term employment, labor income,

and spending on goods and services in the cumulative impacts

study area.” Id. at *17.

i.

Petitioners’ first argument is unpersuasive. While the

Center concedes that the Final EIS “acknowledged that

increased oil production in the Basin . . . could have profound

consequences for the Basin’s environment (upstream) and

climate change (downstream),” Center Br. 19, it argues that the

Board mischaracterized these effects “as ‘cumulative effects’

that would occur independent of the Railway’s construction

and/or operational impacts, instead of as ‘indirect effects’

caused by the construction and operation of the railroad,” id. at

20 (emphasis omitted).

27

The Center explains, for example, that the Final EIS

attributes an additional “131,169 tons per year” in greenhouse

gas emissions to the Railway. Id. at 21. However, the Center

claims that total number would have been closer to

“56,078,436 tons annually [or] 427 times the amount the Board

attributed to the Railway” if it had included “emissions

generated from oil and gas operations and from combustion of

the oil transported by the Railway, plus operations along the

downline route between the Railway’s Kyune terminal and

Denver.” Id. at 21–22 (internal citations and emphasis

omitted). The Center describes this “mischaracterization” as

“minimizing” the Railway’s consequences in contravention of

NEPA’s hard look requirement as well as “skewing the

weighing of environmental costs and projects benefits” the

Board must undertake under the ICCT Act. Id. at 23.

The Center’s argument is unavailing because it fails to

demonstrate prejudice from the alleged mischaracterization.

See Nevada v. Dep’t of Energy, 457 F.3d 78, 90 (D.C. Cir.

2006). Even if the Board erroneously characterized the impacts

related to increased oil production as cumulative impacts,

Petitioners identify no way in which this decision materially

affected the Board’s analysis under NEPA. The Center fails to

highlight any actual omission in the Board’s emissions

analysis. In its final order, the Board acknowledged the impact

of increased oil extraction in the Basin and explained “[t]he

impacts and the analysis of those impacts would be the same

no matter which label is used.” Final Exemption Order, 2021

WL 5960905, at *18 & n.15. The Center fails to show any

indication in the final order or the administrative record that the

Board did not consider these impacts in its analysis. Further,

the Final EIS quantified potential carbon emissions from

downstream refining of Uinta Basin oil and concluded that

emissions associated with the combustion of fuels produced

from crude oil transported on the Railway could constitute

28

nearly one percent of total U.S. emissions under its “high oil

production scenario.” J.A. 1139.

Such disclosures, even if under the rubric of “cumulative

impacts,” can hardly be said “to undermine informed public

comment and informed decisionmaking.” Sierra Club v. FERC

(Sabal Trail), 867 F.3d 1357, 1368 (D.C. Cir. 2017).

ii.

Next, the Center contends that the Final EIS ignored

certain upstream and downstream impacts of the Railway. We

agree.

The Center notes that the Final EIS “failed to disclose the

downstream environmental impacts of increased crude oil

refining along the Gulf Coast.” Center Br. 24. The Center

explains that the Final EIS predicted “half the oil production

increase—up to 175,000 barrels/day—would be delivered to

Houston and/or Port Arthur, Texas, and another 35 percent to

the Louisiana Gulf Coast.” Id. (citing J.A. 1231). Accordingly,

the Center provides, “the EIS was required to analyze the

potential for tens of thousands of additional barrels of oil

shipments daily and their processing in these locales to further

worsen pollution burdens,” locales with known,

disproportionate exposure to pollution already. Id. at 25–26.

Further, the Center argues that the Board arbitrarily limited its

cumulative impact analysis regarding effects on vegetation and

“special-status species” to the area adjacent to the proposed rail

line and “within several hundred feet of the rail line.” J.A.

1126–27. The Center contends this geographic limitation

resulted in the exclusion of impacts on “a vast area in which

well and road construction, drilling, and truck traffic could

destroy and degrade habitat.” Center Br. 27.

29

In response, the Board makes two primary arguments.

First, the Board argues that “upstream and downstream impacts

from oil development in the Uinta Basin are not reasonably

foreseeable impacts.” Board Br. 35 (cleaned up). Second, it

contends that it was not required to consider the environmental

effects of downline oil refining on Gulf Coast communities or

on greenhouse gases from oil combustion because the Board

“cannot regulate or mitigate impacts caused by [downline train]

operations.” Final Exemption Order, 2021 WL 5960905, at

*19.

As to upstream impacts, the Board claims that “any oil

development in the Uinta Basin occurring as a result of the

[Railway] will be done in the future as part of as yet unknown

and unplanned independent projects that would occur on as yet

unidentified private, state, tribal, or federal land.” Board Br.

35–36. In addition, any development would be undertaken “by

as yet unknown entities and licensed or permitted by other

federal agencies, state and local governments, or the Ute Tribe,

depending on the location of the development.” Id. at 36. The

Board asserts that estimates provided by the Coalition on

“upstream wells based on estimates of the amount of oil

anticipated to be transported on the [Railway]” are merely

estimates and otherwise the actual numbers are “simply

unknown and unknowable.” Id. at 36.

For downstream emissions, the Board explains that the

“destinations and combustion of Uinta Basin oil is unknown

and unknowable at this stage” since it will depend on many

factors such as “oil developers, market forces, refinery

capacity, [etc.]” Id. at 37. While the Board concedes that it

“identified five general geographic regions where the oil could

go to be refined,” it claims that it is impossible to predict which

of the known “31 refineries” in those areas “would receive

Uinta Basin oil.” Id. at 37–38. Accordingly, the Board

30

contends “there is no way to predict or assess impacts to

specific nearby communities from refining that oil.” Id. at 38.

In effect, the Board justifies “declining to consider

greenhouse-gas emissions and other environmental impacts”

related to oil development both upstream and downstream

“based on its lack of information about the” location of future

oil production sites in the Uinta Basin and the “destination and

end use of the [oil] in question.” Birckhead v. FERC, 925 F.3d

510, 519 (D.C. Cir. 2019) (per curiam).

We have previously considered when an agency may draw

the line and find that it cannot engage in reasonable forecasting

to determine certain environmental effects. We explained in

Birckhead v. FERC, that impacts from upstream gas production

and “downstream gas combustion are” not always as a

categorical matter a reasonably foreseeable effect of a project

that will facilitate the transport of gas. Id. The analysis is

necessarily contextual. “In determining what effects are

‘reasonably foreseeable,’ an agency must engage in

‘reasonable forecasting and speculation,’ with reasonable

being the operative word.” Sierra Club v. Dep’t of Energy

(Freeport), 867 F.3d 189, 198 (D.C. Cir. 2017) (citation

omitted). “The agency ‘need not foresee the unforeseeable, but

by the same token neither can it avoid drafting an impact

statement,’” or including relevant effects in such statement,

“‘simply because describing the environmental effects of and

alternatives to particular agency action involves some degree

of forecasting.’” Id. (quoting Scientists’ Inst. for Pub. Info.,

Inc. v. Atomic Energy Comm’n, 481 F.2d 1079, 1092 (D.C. Cir.

1973)).

The Center primarily points to Sabal Trail, in which FERC

argued that “it [was] impossible to know exactly what quantity

of greenhouse gases [would] be emitted as a result of [a gas

31

pipeline project] being approved” as part of its effects analysis.

867 F.3d at 1373–74. We rejected that argument because the

pipeline developers in that case had identified the specific

power plants in Florida that would be the recipients of the gas,

see id. at 1372, and “FERC ha[d] already estimated how much

gas the pipelines [would] transport,” id. at 1374. Accordingly,

the Court found that the related EIS “should have either given

a quantitative estimate of the downstream greenhouse

emissions that [would] result from burning the natural gas that

the pipelines [would] transport or explained more specifically

why it could not have done so.” Id.

The Board, on the other hand, highlights Delaware

Riverkeeper Network, in which the Court cited Sabal Trail as

support for its holding that “[g]reenhouse gas emissions are

reasonably foreseeable effects of a pipeline project when the

project is known to transport natural gas to particular power

plants.” Del. Riverkeeper Network v. FERC, 45 F.4th 104, 109

(D.C. Cir. 2022). In Delaware Riverkeeper Network, however,

the Court found that the agency did not have to estimate certain

downstream greenhouse gas emission because, as FERC

reasoned, “natural gas would be delivered for further

transportation on the interstate grid to an unknown destination

and for an unknown end use.” Id. at 110.

Neither Sabal Trail nor Delaware Riverkeeper Network

are perfectly analogous, but the Final EIS’s analysis makes this

case more akin to Sabal Trail. In the Final EIS, the OEA

developed different scenarios for the expected increase in rail

traffic on the Railway and resulting increase in oil production.

See J.A. 1106–07. As part of its cumulative impact analysis,

the “OEA estimated the number of oil wells that would need to

be constructed and operated [in the Basin] to satisfy the

expected increased oil production volume scenarios.” Id. at

1107. The EIS described its “estimates of future oil

32

production” as “a reasonably foreseeable development

scenario based on historical data about the Basin and

consultation with [the Utah Geological Survey].” Id. at 1109.

While the Board lacks “direct parameters” about the oil wells

that would need to be drilled, this Court has found that “some

educated assumptions are inevitable in the NEPA process.”

Sabal Trail, 867 F.3d at 1374.

The Board provides no reason why it could not quantify

the environmental impacts of the wells it reasonably expects in

this already identified region. Further, the Board’s cursory

assertion that it could confine the upstream impacts of oil

development on vegetation and wildlife to areas where oil

development and railroad construction would overlap lacks any

reasoned explanation and is unsupported in the record. See J.A.

1123. At a minimum, the Board “must either quantify and

consider the project’s [upstream impacts] or explain in more

detail why it cannot do so.” Sabal Trail, 867 F.3d at 1375.

Similarly, while the Board argues it cannot identify

specific refineries that will receive and process the oil that it

expects will be developed, the EIS identifies specific regions

that will receive the oil based on expected train traffic, see J.A.

1191–92, and a limited number of refineries in those regions

that would have the available capacity to process and refine the

Uinta Basin’s waxy crude oil, id. at 1189. The Board fails to

explain why it cannot take the next step and estimate the

emissions or other environmental impacts it expects in its

impacts analysis since it has “identif[ied] where the [Railway-

induced] [oil and] gas production [is expected to] occur.”

Freeport, 867 F.3d at 201 (emphasis in original). This is not a

case in which the location of where the oil will be delivered or

its end use is unknown, as in Delaware Riverkeeper Network.

Indeed, the Board has identified the refineries that likely would

be the recipients of the oil resulting from the Railway’s

33

operation, see J.A. 1189, and explained that the oil will be

refined for combustion, see id. at 1138.

While great “deference [is] owed to [the Board’s]

technical judgments,” it still must provide a reasoned

explanation for its rulings. Del. Riverkeeper Network, 45 F.4th

at 111. The Board fails to adequately explain why it could not

employ “some degree of forecasting” to identify the

aforementioned upstream and downstream impacts in light of

the Board’s extensive analysis and estimations related to

increased oil production. Scientists’ Inst., 481 F.2d at 1092. 1

1

After the hearing on these petitions, the Coalition brought to our

attention a recent case of our Court that it urges us to find supports

its position that downstream impacts on the Gulf Coast were not

reasonably foreseeable, Center for Biological Diversity v. FERC, 67

F.4th 1176 (D.C. Cir. 2023). However, this recent case adds nothing

new to our analysis. There, the petitioners argued that FERC was

required “to consider the indirect effects of Alaska-bound gas,” id. at

1185–86, given its acknowledgement that the corporation requesting

authorization to build the proposed liquefied natural gas facility

“plan[ned] to install at least three taps along the Project’s pipeline

and to divert some natural gas for sale and use in Alaska,” id. at

1185. However, the Court noted numerous uncertainties made any

related emissions not reasonably foreseeable, specifically that “the

Corporation would have to contract with prospective customers and

secure regulatory approval from Alaska, and various subsidiary

pipelines (none of which had been proposed) would have to be built.”

Id. In this case, there are no such uncertainties. The Board made

clear that it expected a certain amount of oil to be transported to

specific regions with a limited set of refineries. See J.A. 1189. The

Board expects the crude oil would then be refined for combustion.

See id. at 1189, 1139. This recent case merely reiterates this Court’s

precedent that “indirect emissions are not reasonably foreseeable if

the Commission cannot identify the end users of the gas,” but that is

not what we have here. Ctr. for Biological Diversity, 67 F.4th at

34

The Board, like any agency, is not allowed “to shirk [its]

responsibilities under NEPA by labeling” these reasonably

foreseeable upstream and downstream “environmental effects

as ‘crystal ball inquiry.’” Id. (quoting Nat. Res. Def. Council,

Inc. v. Morton, 458 F.2d 827, 837 (D.C. Cir. 1972)).

The Board also cannot avoid its responsibility under

NEPA to identify and describe the environmental effects of

increased oil drilling and refining on the ground that it lacks

authority to prevent, control, or mitigate those developments.

See Final Exemption Order, 2021 WL 5960905, at *19 (Board

order citing Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752,

768-770 (2004)).

The undisputed purpose of the railway is to expand oil

production in the Uinta Basin, by enabling it to be brought to

market via the proposed rail line connecting the Basin to

existing lines that run to Gulf Coast refineries. The Board

concededly has exclusive jurisdiction over the construction and

operation of the railway, including authority to deny the

exemption petition if the environmental harm caused by the

railway outweighs its transportation benefits. See 49 U.S.C. §§

10501(c), 10901(b); Alaska R.R.—Constr. & Operation

Exemption—Rail Line Between Eielson Air Force Base & Fort

Greely, Alaska (Alaska Railroad), S.T.B. Fin. Docket 34658,

2007 WL 2875687, at *1 (STB served Oct. 4, 2007). The

Board is authorized to license railroad construction and

operation based on the “public convenience and necessity,”

which encompasses reasonably foreseeable environmental

harms. Sabal Trail, 867 F.3d at 1373. And, given that the

Board has authority to deny an exemption to a railway project

on the ground that the railway’s anticipated environmental and

1185 (citing Del. Riverkeeper Network v. FERC, 45 F.4th 104, 110

(D.C. Cir. 2022)).

35

other costs outweigh its expected benefits, the Board’s

argument that it need not consider effects it cannot prevent is

simply inapplicable. See id.

Just as was the case with the gas pipeline at issue in

Birkhead v. FERC, the agency is “not excused” from

considering the environmental impacts of a railway it approves

“even where it lacks jurisdiction over the producer or

distributor of the [oil] transported by” that railway. 925 F.3d

at 519 (quotation marks omitted).

iii.

The County contends the Board failed to consider the

cumulative impacts associated with the reactivation of the

Tennessee Pass Line and the Railway. Cnty. Br. 37. As noted

above, agencies “need not foresee the unforeseeable.”

Freeport, 867 F.3d at 198 (quoting Scientists’ Inst., 481 F.2d

at 1092). Here, the reactivation of the Tennessee Pass Line was

much too unlikely for the Board to have included among the

potential impacts it considered.

The Tennessee Pass Line is an approximately 163-mile

railway running between Sage and Parkdale, Colorado that

“has been out of service for many years.” J.A. 1241. The

County argues that the “reactivation of the Tennessee Pass Line

is reasonably foreseeable” since “reactivation of the

[Tennessee Pass] Line has been sought in two separate Board

proceedings.” Cnty. Br. 37 (citing J.A. 550–51). It notes that

the Tennessee Pass Line and Union Pacific Line “converge in

Eagle County near Dotsero and the Colorado River,” which—

assuming reactivation of the Tennessee Pass Line and

increased rail traffic on the Union Pacific Line—“would

present environmental impacts to the same area of Eagle

County that would experience the Railway’s rail traffic.” Id. at

38. The County concedes that “the Board rejected requests to

36

consider the impact of the Railway’s oil trains using the

Tennessee Pass Line as a reasonably foreseeable impact of the

Railway,” but argues that the Board’s determination did not

excuse it from “tak[ing] a hard look at the cumulative effect of

the significant increase in traffic on the Union Pacific Line and

a reactivated Tennessee Pass Line.” Id. (emphasis in original).

The Board explains that “neither reactivation nor use of

the Tennessee Pass Line for trains transporting Uinta Basin oil

is reasonably foreseeable.” Board Br. 55. It notes that since it

denied a 2020 request to lease and operate the line, there have

been “no pending or reasonably foreseeable requests to

reactivate the Tennessee Pass Line.” Id. Further, it points to

its “rail traffic model” and provides that it did not forecast any

trains travelling over the Tennessee Pass Line, especially since

the line has higher grades—meaning “train[s] would have to

use more locomotives and consume more fuel to use that route

compared to the [Union Pacific] mainline,” J.A. 1241—which

the OEA found “make[s] [the Tennessee Pass Line] an

impractical and unlikely route for Uinta Basin trains.” Board

Br. 56. Finally, the Board noted that the Coalition “submitted

a verified statement explaining that the planned operators of the

[Railway] have no plans to transport Uinta Basin oil on the

Tennessee Pass Line and that it would not be practical or

economical to do so.” Id.

Given the information available to the Board, it properly

found it was not reasonably foreseeable that the Tennessee Pass

Line would be reactivated. Such “baseless speculation is

unhelpful,” and the Board had no obligation to consider the

cumulative impacts of such a remote possibility. Freeport, 867

F.3d at 198.

37

2.

Petitioners’ next set of NEPA challenges concern the

Board’s assessment of “indirect or down-line impacts” of the

Railway. 49 C.F.R. § 1105.7. In this context, “[d]ownline

impacts are impacts that could occur along existing rail lines as

a result of increased rail traffic due to the addition of new trains

originating or terminating on the proposed rail line.” J.A. 1230.

Using thresholds outlined in the Board’s regulations, the Final

EIS “identified existing rail lines that could experience an

increase in rail traffic of three trains per day or more for areas

in nonattainment under the Clean Air Act or eight trains per

day or more in attainment areas.” Id. at 1231 (citing 49 C.F.R.

§ 1105.7(e)(5)). The Final EIS discussed what impact the

Railway could have downline on, among other things, rail

accident risk, wildfire risk, water and biological resources, and

land use and recreation.

Again, we find Petitioners’ various objections successful

in part.

i.

Petitioners contend that the Board failed to take a “hard

look” at the increased risk of rail accidents downline given the

increased rail traffic resulting from the Railway. This first

argument is persuasive.

The Final EIS determined that the new Railway would lead

to increased downline rail traffic, ranging from 0.4 to 9.5 trains

per day. J.A. 888. This increase “would have the greatest

impact on the segment of the existing [Union Pacific Line]

between Kyune and Denver,” id. at 899, which could

experience between 3.3 and 9.5 additional trains per day, see

id. at 886. Using national data for train accident rates, see id.

at 1197, the Final EIS modeled two scenarios, one with high

38

rail traffic and one with low traffic for both loaded and

unloaded trains, id. at 899–90. The OEA found that the Union

Pacific line segment “would experience more than two times

the risk of an accident than under baseline (existing)

conditions” and an increase of “about 40 percent from the

baseline risk” in the low rail traffic scenario. Id. at 899.

Numerically, this comes out to 0.89 additional predicted

accidents per year in the high rail traffic scenario and 0.31

additional accidents annually in the low scenario. Id.

The Final EIS noted that the Union Pacific Line segment

“currently has a low volume of rail traffic relative to the

predicted traffic” on the Railway, which contributes to the

magnitude of difference in accident risk under the status quo.

Id. The OEA also explained that an accident would not always

involve a loaded crude oil train. See id. at 897–98. On the

Railway, OEA estimated that “an accident involving a loaded

oil train would occur approximately once every 3 to 10 years.”

Id. at 897. On the Union Pacific Line segment, the OEA

predicted that “accidents involving a loaded crude oil train

would occur slightly less than once per year under the high rail

traffic scenario.” Id. at 900.

The County challenges the Board’s use of national data for

train accident rates. It contends the Board ignored record

evidence undermining its assumption “that the likelihood of

derailment for long trains carrying oil through the Mountain

West would be the same as any other train in any other locale

in America.” Cnty. Br. 39. The County also asserts that the

Board arbitrarily assumed “that accident rates for loaded trains

would be the same as those for empty trains.” Id. (citing J.A.

898) (emphasis omitted). While the County recognizes that the

Board acknowledged there was limited data on accident rates

for this geographic area, it argues that NEPA regulations, see

40 C.F.R. § 1502.22 (2019), required the Board to explain

39

“why the information was unavailable and what actions the

agency took to address that unavailability.” Cnty. Br. 41

(quoting Oglala, 45 F.4th at 300).

“The regulation appears applicable on its face.” Vecinos

para el Bienestar de la Comunidad Costera v. FERC, 6 F.4th

1321, 1329 (D.C. Cir. 2021). In response to a comment

asserting that the Draft EIS “fail[ed] to consider the unique

derailment risks posed by heavy, long unit trains that would

exclusively transport crude oil,” OEA responded that

“insufficient data exist on accident rates for unit trains carrying

crude oil in general, or trains carrying waxy crude oil in

particular, to allow OEA to calculate commodity-specific

accident rates.” J.A. 1245. Accordingly, under the CEQ

regulations, the Board could only “satisfy NEPA by explaining

in the EIS why the information was unavailable and what

actions the agency took to address that unavailability.” Oglala,

45 F.4th at 300 (citing 40 C.F.R. § 1502.22(b) (2020)).

Here, the Board does not contend that it followed the

regulations with regards to its accident data. Instead, it

concededly relied on national freight train accident rates

without explanation and assumed that loaded freight trains

were as likely to derail as unloaded trains. See J.A. 900,

1197–98. Further, the County identifies specific record

evidence noting that there is increased risk from loaded, miles-

long oil trains traveling through difficult mountainous terrain,

see Cnty. Br. 39 (citing J.A. 618), evidence the OEA

effectively ignored in the Final EIS. “Because the [Board]

failed to respond to significant opposing viewpoints

concerning the adequacy of its analyses of [rail accidents], [the

Court] [must] find its analyses deficient under NEPA and the

APA.” Vecinos, 6 F.4th at 1329.

40

ii.

The County also contends the Board violated NEPA by

“fail[ing] to take a hard look at the risk and impact of wildfires

presented by the Railway” given the expected increased traffic

on the Union Pacific Line. Cnty. Br. 33. We agree.

After receiving comments on the Draft EIS, “OEA

considered impacts from rail operations along existing rail line

segments downline . . . including impacts related to wildfires.”

J.A. 992. It found that “the downline wildfire impact of the

proposed rail line would not be significant” for three reasons.

Id. First, the OEA noted that the “construction and operation

of the [Railway] would not introduce a new ignition source for

wildfires along the downline segments” since the rail lines are

“active rail lines that have been in operation for many years.”

Id. Second, the OEA explained that “the probability that a train

would trigger a wildfire is very low.” Id. The OEA provides

that, among other things, “improvements in locomotive

technology and the fact that trains make up a small percentage

of fire starts” results in a low “probability of train-induced

wildfire.” Id. at 991. Finally, the OEA references the U.S.

Forest Service’s Wildfire Hazard Potential map, which was

“created . . . to help inform evaluations of wildfire risk or

prioritization of fuel-management needs across very large

landscapes.” Id. at 965. “The [Wildfire Hazard Potential] map

displays those areas within the continental United States that

have very different levels of fire potential, categorized by five

[Wildfire Hazard Potential] classes (very low, low, moderate,

high, and very high) and two non-[Wildfire Hazard Potential]

classes (non-burnable and water).” Id. The Final EIS provides

that the Wildfire Hazard Potential map demonstrates that

“nearly 90 percent of the area along the downline segments

consists of very low, low, nonburnable, and water [Wildfire

Hazard Potential] classes.” Id. at 992. Accordingly, the OEA

41

explained, the Railway would not result in significant increased

risk of wildfires downline. See id.

The County derides the Board’s “conclusion that wildfire

risks posed by the Railway would be low” because the

increased train traffic would not be a “new ignition source” in

the downline area, arguing that “[m]ore trains mean more

ignition sources.” Cnty. Br. 34. The County points to record

evidence and “substantial concerns . . . submitted to the Board

regarding the elevated risk of wildfire posed by the increase in

rail traffic and accidents through the Colorado mountains

carrying the highly flammable crude oil.” Id. (citing J.A. 761–

65). The County also faults the Board’s reliance on the

Wildfire Hazard Potential map. It claims that “the Forest

Service cautioned that its [Wildfire Hazard Potential] map is

‘not an explicit map of wildfire threat or risk’” and that its

primary purpose was “not to determine wildfire impacts.” Id.

at 36 (quoting U.S. Dep’t of Agric., Forest Serv., Wildfire

Hazard Potential for the United States, MISSOULA FIRE SCIS.

LAB’Y (2020), https://perma.cc/DV59-XFC8). In the

alternative, the County states that the Board’s reliance on the

map cannot excuse it failing to “evaluate the approximately

4,000 acres of high to very high Wildfire Hazard Potential

classes along the Union Pacific Line or the increased risk of

wildfire posed by the rail traffic and accidents on the [Union

Pacific] Line.” Id.

The County does not refute that it failed to raise its

objections to the Board’s reliance on the Wildfire Hazard

Potential map during the administrative proceedings.

Accordingly, “it has waived the argument by failing to raise it

at the administrative level.” Nevada, 457 F.3d at 88. Its

remaining arguments, however, are persuasive.

42

While we recognize that the Board relied on additional

factors in analyzing downline wildfire risks—such as

technological improvements in the rail industry and historic

data on train-induced wildfires—its assertion that an increase

in rail traffic of up to 9.5 new trains a day would not result in a

significant wildfire risk because it would not be a qualitatively

“new ignition source” is utterly unreasoned. J.A. 992. A

significant increase in the frequency of which existing ignition

sources travel this route equally poses an increased risk of fire.

It follows that the historic data relied upon purportedly

showing that train-induced wildfire has a low probability is not

dispositive, especially given the concededly “low volume of

rail traffic” on the Union Pacific Line currently. Id. at 899.

Further, because the Board appears to have underestimated the

accident risk for downline trains as noted in the prior section,

it necessarily underestimated the wildfire risk from downline

derailments.

This is not the “hard look” that NEPA requires. PEER,

827 F.3d at 1082.

iii.

Next, the County urges that the EIS failed to evaluate

certain adverse impacts on downline resources, including on:

(1) “water resources” especially since the “sensitive” Colorado

River parallels the Union Pacific Line; (2) “biological

resources . . . including impacts to wildlife, endangered species,

habitat degradation, and the impact of more trains on species’

survival”; (3) “land use and recreation . . . which includes

hundreds of thousands of acres of public lands, national forests,

recreational areas, and mountain communities in Eagle

County”; and (4) “noise and vibrations on the [Union Pacific]

Line.” Cnty. Br. 31–33.

43

The County acknowledges that the Board responded in the

Final Exemption Order and EIS to comments challenging the

EIS’s impact on biological resources on the Union Pacific Line.

Id. at 31–32 (“[T]he Final EIS . . . ‘considered impacts of rail

operations along existing rail line segments downline’ on

‘some biological resources, including impacts on ESA-listed

species’ and determined that ‘the addition of up to 9.5 trains

per day, on average, would not substantially change the

severity of those impacts.’”) (quoting J.A. 995–96). The

County also concedes that “the Board purported to evaluate

noise and vibrations” on the Union Pacific Line, Cnty. Br. 33,

but claims that the Board’s analysis was inadequate since it

merely “identif[ied] how loud trains would be or the amount of

land negatively impacted by the trains’ noise and vibrations.”

Id. The County contends that the Board “was required to

describe the ‘actual environmental effects’ of the Railway on

the environment, historic properties, and communities along

the Union Pacific Line.” Id. (emphasis omitted) (quoting Ctr.

For Biological Diversity v. Nat’l Highway Traffic Safety

Admin., 538 F.3d 1172, 1216 (9th Cir. 2008)).

Despite its assurance that the EIS’s analysis of impacts on

water resources considered the impacts on the Colorado River,

the Board offers no citations that explicitly reference possible

impacts to the relevant downline water resources or explains

why, as it says, “the impacts are the same and apply to both.”

Board Br. 52. Merely “[s]tating that a factor was considered

. . . is not a substitute for considering it,” Getty v. Fed. Sav. &

Loan Ins. Corp., 805 F.2d 1050, 1055 (D.C. Cir. 1986), and

there is no evidence here that the Board even considered the

potential impacts on water resources downline of running up to

9.5 loaded oil trains a day on the Union Pacific Line—about

50% of which abuts the Colorado River, see Ctr. Reply Br. 21.

The Board concededly fails altogether to mention the Colorado

River in the Final EIS’s discussion of impacts on water

44

resources. See Board Br. 51–52 (“The EIS analyzed the

impacts of a spill and other releases on all water resources and,

while it did not explicitly say so, that analysis applied equally

to water resources adjacent to the [Railway] as well as

operations in the downline study area. . . .”) (emphasis added).

This was not a “hard look” under NEPA.

We cannot reach the merits of the County’s other

arguments concerning downline impacts on biological

resources, land use and recreation, and noise-related

disturbance, because it failed to raise them before the Board.

Longstanding precedent mandates that “persons challenging an

agency’s compliance with NEPA must structure their

participation so that it . . . alerts the agency to the parties’

position and contentions, in order to allow the agency to give

the issue meaningful consideration.” Nevada, 457 F.3d at 88

(cleaned up). While the County claims that “hundreds of

comments” put the Board on notice of its positions, see County

Reply Br. 7, 8, the record citations it provides are vague and

“bare” references that “d[o] not touch on what [the County]

argues here,” Nevada, 457 F.3d at 88–89.

The County cites, for example, a letter from a nonprofit

river conservation organization, noting that its comments were

specifically provided to address “the direct impacts to river

recreation in the Uinta Basin and to the reasonably foreseeable

impacts associated with potential crude oil transport over the

Tennessee Pass Line in Colorado.” J.A. 597. Notably, while

this letter does request that the Board assess certain recreation

concerns in the Uinta Basin, it does not make the same request

for downline resources. Further, the letter discusses the

reactivation of the Tennessee Pass Line, which we have already

found was not reasonably foreseeable. The County also cites

one vague comment, which asserted that “the small

communities of Colorado are too often the ones to pay the price

45

for external business ventures such as the [Railway].” Id. at

546.

These comments in no way alert the Board to the County’s

specific challenges relating to downline impacts on biological

resources, land use and recreation, or even impacts related to

increased noise. The Board did not act arbitrarily in declining

to address these “cryptic and obscure reference[s]” in the Final

EIS. Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def.

Council, Inc., 435 U.S. 519, 554 (1978).

3.

Finally, the Center argues that the Board’s direct effects

analysis failed to take a hard look at the geological risk of

landslides attributable to the Railway. Ultimately, this

argument is unpersuasive.

As part of its analysis of direct impacts, the Board

“determine[d] the potential impacts related to geology, soils,

and seismic hazards that could result from construction and

operation” of the three Action Alternatives. J.A. 1014. The

OEA conducted a baseline analysis of the “geological and

seismic characteristics of the study area” and then identified

“unstable geologic units for each alternative and the correlating

risk of mass movement.” Board Br. 63.

The analysis was based on, among other things, “maps of

unstable geological units[,] maps of areas with steep slopes

which present higher landslide risk,” and maps depicting

landslide risks. Id. at 66. The Board concedes that the

landslide maps it employed were “incomplete and likely

understated the areas affected by mass movement and that there

could be unmapped abandoned mines,” as acknowledged in the

Final EIS. Id. at 65. Regardless, the Board recognized that all

three Action Alternatives posed an increased risk of landslides

46

based on the data it had available but found that mitigation

measures could be imposed such that “the impacts would not

be significant.” Id. at 63 (citing J.A. 1031).

The Center’s primary objection is a simple one: the

“landslide hazards throughout the bulk of the study area are

unknown.” Center Br. 35 (citing J.A. 1019–20). In addition,

the Center objects to the Board’s reliance on mitigation

measures that include “post-approval surveys” to be conducted

by the Coalition after the Railway is approved. Id. at 35–36

(citing J.A. 1024). The Center complains that the Board cannot

assume insignificant impact when “the EIS neither identified

nor analyzed site-specific hazards [such that] the nature and

extent of the problem are unknown.” Id. at 37–38. Without a

more fulsome understanding of the landslide risk across the

three Action Alternatives, the Center asserts, the Board could

not say it took a “hard look” at which of the alternatives had

the least risk of landslide hazards. Moreover, it could not pawn

off its NEPA responsibilities to take a hard look at potential

landslide risk to the Coalition, who the Board assumes will

conduct the necessary geological surveys once construction

begins.

As in its analysis of accident risk, the Board lacked data

regarding landslide risk in the relevant area but pressed

forward. Here, however, the Board actually met its burden

under 40 C.F.R. § 1502.22 (2019).

The Board evaluated the available information, disclosed

that information relevant to its environmental impact analysis

was incomplete or unavailable, summarized “existing credible

scientific evidence” relevant to those impacts, and evaluated

the environmental impacts of its actions based on “generally

accepted” research methods, theoretical approaches, and

credible evidence. See id. § 1502.22(b). The Board relied upon

47

information beyond the “incomplete” mapping datasets,

including “other data sets that were complete,” and “concluded

that the available information was sufficient to compare the

Action Alternatives and assess the potential impacts of each.”

Board Br. 65–66 (citing J.A. 1266); see also J.A. 1019. Since

the Board “explain[ed] in the EIS why the information was

unavailable and what actions the agency took to address that

unavailability,” it was not a violation of NEPA for the Board

to reach its determination that landslide risk would not be

significant absent suggestions from parties as to better

available data. Oglala, 45 F.4th at 300 (citing 40 C.F.R.

§ 1502.22(b) (2020)).

B.

1.

The Center also raises objections related to the Biological

Opinion, which was developed by the Service after the Board,

as the action agency, sought formal consultation under the

ESA.

The Board began the consultation process by conducting

“a threshold biological assessment.” Center II, 56 F.4th at 62.

The purpose of a biological assessment is determining both

“the species, habitats, and geographic areas that may be

present” and “setting forth an empirically based judgment

whether the proposed action may affect a listed species or

critical habitat.” Id. The relevant geographic area, or “action

area,” used in the biological assessment is defined “as all areas

to be affected directly or indirectly by the proposed project and

not merely the area immediately adjacent to the action.” J.A.

1756; see also 50 C.F.R. § 402.02.

The Biological Assessment identified that certain

protected species of fish in the upper Colorado River Basin

48

may be affected by the Railway. J.A. 1727. These included

the Colorado pikeminnow, razorback sucker, humpback chub,

and bonytail chub. Id. Accordingly, the action area for

protected fish species was defined, in part, as not only

including “streams and other surface waters in the project

footprint and a limited distance upstream and downstream of

the [Railway],” but also the area “concurrent with the Upper

Colorado River Basin” affected by water depletion that may

arise from the construction and operation of the Railway. Id.

at 1757.

The Board then sought formal consultation of the Service.

For a formal consultation, the Service “write[s] a biological

opinion using information in the biological assessment and the

best scientific and commercial data available to determine

whether the agency action is likely to jeopardize the continued

existence of listed species or result in the destruction or adverse

modification of critical habitat.” Center II, 56 F.4th at 62–63.

(quotation marks and citations omitted). The Service will also

“include[] an evaluation of the basis for [its] findings.” Id. at

63. Here, the Service adopted the Board’s proposed action

area, defining it as: “(1) the entire project footprint, (2) a 300-

foot buffer around the project footprint, and (3) the area of the

Upper Colorado River Basin affected by water depletions.” Br.

of Resp’t U.S. Fish and Wildlife Serv. 11 [hereinafter “Serv.

Br.”] (citing J.A. 1660). In the BiOp, “the Service concluded

that the proposed project is not likely to jeopardize the

continued existence of the [four federally listed fish species in

the affected area of the Upper Colorado River Basin] or result

in destruction or adverse modification of designated critical

habitat.” Id. at 8 (citing J.A. 1696).

49

2.

The Center objects to the Board’s determination of the

relevant action area and the Service’s adoption of that action

area in the BiOp. By considering only the possible effects of

water depletion—as the Center argues—the Board ignored

comments that increased rail traffic may lead to “contamination

from spills and leaks” along the Union Pacific Line where it

intersects with the Colorado River, which may pose harm to the

protected fish and their critical habitat. Center Br. 43. For this

reason, the Center urges the Court to find that the BiOp and

Board’s Final Exemption Order, which relied upon the BiOp,

are arbitrary and capricious. Id.

Both the Service and the Board contend that the decision

was supported by a “rational and sufficient” explanation. Serv.

Br. 11–12; see also Board Br. 53–54. While recognizing that

“any active rail line” would expose adjacent water resources to

“minor leaks or drips of fuel or lubricants” from train traffic or

a larger spill from a derailment, the Board reasoned that the

Railway “would not introduce a new potential source of

pollution along the existing [Union Pacific] rail line” since

trains have traveled the Union Pacific Line for many years.

J.A. 1845. The Board notes that “an effect must be ‘reasonably

certain to occur’ to be an effect of the proposed action,” and

states that the Board reasonably concluded and explained “that

the risk of a large spill is so low as to not be reasonably

foreseeable and that adding project-related trains would not

substantially change the severity of impacts that already exist.”

Board Br. 53 (citing J.A. 996). The Service contends that both

agencies are owed deference regarding how they defined the

action area, see Serv. Br. 9, and asserts that even though the

BiOp “does not repeat the analysis the Board already

conducted,” the “Service reasonably relied on the Board’s

analysis when issuing the [BiOp],” id. at 13.

50

The Board’s reasoning for narrowly defining the action

area to not include waterways downline near the Union Pacific

Line is unreasoned and fails to demonstrate a “rational

connection between the facts found and the choice made.”

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington

Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).

Though it is obvious that the increased traffic on the Union

Pacific Line “would not introduce a new potential source of

pollution,” J.A. 1845 (emphasis added), it is entirely unclear

from the record why the Board determined that the additional

train traffic—with the attendant increase in “leaks or drips of

fuel or lubricants”—“would not substantially change the

severity of impacts” on the protected species near the Union

Pacific Line, id.

This reasoning is especially flawed given the Board’s

recognition that the Union Pacific Line segment “currently has

a low volume of rail traffic relative to the predicted traffic” due

to the Railway and the likely flawed analysis of accident risk,

as discussed above. Id. at 899. Though we accord deference

“on matters relating to their areas of technical expertise[,] [w]e

do not . . . simply accept whatever conclusion an agency

proffers merely because the conclusion reflects the agency’s

judgment.” Tripoli Rocketry Ass’n, Inc. v. Bureau of Alcohol,

Tobacco, Firearms, & Explosives, 437 F.3d 75, 77 (D.C. Cir.

2006). Here, the Board failed to adequately explain its

reasoning given the record evidence.

The Service’s adoption of the Board’s proposed action

area causes the BiOp itself to be flawed as a result. While the

Board was required to provide “[a] map or description” of the

action area in its initiation of formal consultation with the

Service, 50 C.F.R. § 402.14(c)(1)(ii), the Service had an

independent duty to determine the proper scope of ESA review,

51

id. § 402.14(g). The relevant regulations even require a review

of the “relevant information provided by the [action] agency”

that “may include an on-site inspection of the action area.” Id.

§ 402.14(g)(1). The formal consultation process “ensures that

[government action] likely to jeopardize any species protected

by the ESA either not be taken without consideration of those

risks or yield to safer alternatives.” Center II, 56 F.4th at 63

(citing 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.15). Here, the

Service never considered possible risks to protected species

downline based on the Board’s faulty reasoning and therefore

did not fulfill its important function under the ESA. That is not

how ESA consultation by an action agency with the expert

Services is supposed to work.

The Board arbitrarily narrowed the scope of ESA review,

and the Service adopted that flawed determination without

interrogation. Where, as here, an agency determination is not

supported by reasoned decisionmaking, “the agency’s decision

cannot withstand judicial review.” Tripoli, 437 F.3d at 77.

Both the BiOp and the Board’s Final Exemption Order, to the

extent it relies upon the BiOp, are arbitrary and capricious. Not

only is this violative of the ESA, but the Board also cannot

satisfy its NEPA requirements by pointing to the Biological

Opinion.

C.

The County contends that the Board erred in two ways

with regards to the NHPA.

First, it urges us to find that the Board failed to “consult

with Eagle County regarding the effects of the Railway’s

operations on historic properties in Eagle County,” Cnty. Br.

41, as required under the NHPA, 54 U.S.C. § 304108, and

related regulations, see 36 C.F.R. § 800.2(c)(3) (“A

representative of a local government with jurisdiction over the

52

area in which the effects of an undertaking may occur is entitled

to participate as a consulting party.”). This process is known

as the “Section 106 consultation,” Cnty. Br. 42, and the County

argues the Board “arbitrarily restricted consultation with local

governments to Utah counties near the rail line proposed to be

constructed” despite the known increase in rail traffic and train

noise downline, id. at 43.

Second, the County identifies “properties included on the

National Register and located close to the Union Pacific Line,

including historic cabins, prehistoric rock art, and the segment

of the [Union Pacific] Line running through the County” that it

says will be impacted by the increased rail traffic downline. Id.

at 44. It notes that the Board’s limitation of the NHPA

evaluation to the area adjacent to the Railway arbitrarily failed

to evaluate historic properties downline that would be impacted

by “engine emissions” and “long-term railroad noise and

vibration.” Id. at 44–45.

“[S]ection 106 of the Historic Preservation Act is a ‘stop,

look, and listen’ provision; it requires federal agencies to take

into account the effect of their actions on structures eligible for

inclusion in the National Register of Historic Places.” Illinois

Com. Comm’n v. ICC, 848 F.2d 1246, 1260–61 (D.C. Cir.

1988) (per curiam). “In fulfilling this obligation, agencies must

consult with certain stakeholders in the potentially affected

areas, including representatives of local governments.” City of

Phoenix v. Huerta, 869 F.3d 963, 971 (D.C. Cir. 2017), opinion

amended on reh’g, 881 F.3d 932 (D.C. Cir. 2018) (Mem.).

Regulations define “consultation” as “the process of seeking,

discussing, and considering the views of other participants,

and, where feasible, seeking agreement with them regarding

matters arising in the section 106 process.” 36 C.F.R. §

800.16(f).

53

We have little precedent concerning what standards the

agencies must use to comply with their NHPA consultation

obligations. See generally Kathryn Sears Ore, Form and

Substance: The National Historic Preservation Act, Badger-

Two Medicine, and Meaningful Consultation, 38 PUB. LAND &

RES. L. REV. 205, 223 (2017) (describing the “lack of

specificity” in consultation requirements). However, it is

undisputed that the Board contacted numerous Colorado

entities, including the Colorado State Historic Preservation

Office, and invited the public to provide feedback throughout

the EIS process. The Board’s “process of seeking, discussing,

and considering the views of other[s],” 36 C.F.R. § 800.16(f),

through its EIS process was sufficient here, especially since the

County participated and could have raised its concerns.

The County’s argument that the Board arbitrarily ignored

alleged impacts to historic resources along the Union Pacific

Line is also unavailing. It is a bedrock principle of

administrative law that objections must be first made to the

agency during the administrative proceedings, so it has the

opportunity to change course. See Maryland v. EPA, 958 F.3d

1185, 1210 (D.C. Cir. 2020) (per curiam) (collecting cases)

(“[G]eneral administrative-law principles require timely

preservation of issues before the agency.”). Here, the County

had ample opportunity to raise any concerns related to historic

resources downline given its active participation in the EIS

process. Yet, the County effectively concedes that it failed to

name any historic resources during those proceedings or notify

the Board of potential impacts to those resources. See County

Reply Br. 15–16. Under this record, we find no violation of

the NHPA.

54

D.

Finally, Petitioners contend that the Final Exemption

Order is arbitrary and capricious under the ICCT Act. We

agree.

1.

In granting an exemption from the ICCT Act’s full

application requirements, the rail transportation policy

provided in 49 U.S.C. § 10101 “must guide the [Board] in all

its decisions.” Illinois Com. Comm’n v. ICC, 787 F.2d 616,

627 (D.C. Cir. 1986) (quoting Coal Exporters Ass’n of U.S.,

Inc. v. United States, 745 F.2d 76, 94 n.22 (D.C. Cir. 1984)).

While the Board does not necessarily have to “address each and

every one of the policy’s fifteen components,” it “must

consider all aspects of the policy bearing on the propriety of the

exemption and must supply an acceptable rationale therefor.”

Illinois Com. Comm’n, 787 F.2d at 627. “All that is necessary

is that the essential basis of the [Board’s] rationale be clear

enough so that a court can satisfy itself that the [Board] has

performed its function.” Coal Exporters Ass’n, 745 F.2d at 94

n.22 (quoting Alamo Exp., Inc. v. ICC, 673 F.2d 852, 860 (5th

Cir. 1982)).

Here, the Board identified several different components of

the rail transportation policy as relevant to the Coalition’s

exemption petition.

The first set were discussed in the Preliminary Exemption

Order, which concerned the Railway’s transportation benefits.

These components can be described as “economic” and

“regulatory” policies. They include the policies of “ensur[ing]

the development and continuation of a sound rail transportation

system with effective competition among rail carriers and with

other modes, to meet the needs of the public and the national

55

defense,” 49 U.S.C. § 10101(4); “ensur[ing] effective

competition and coordination between rail carriers and other

modes,” id. § 10101(5); “minimiz[ing] the need for Federal

regulatory control over the rail transportation system,” id.

§ 10101(2); and “reduc[ing] regulatory barriers to entry into

and exit from the industry,” id. § 10101(7).

The Preliminary Exemption Order provided that the

Railway “would provide shippers in the Basin the opportunity

to enter markets they currently cannot access due to cost

constraints and the ability to import materials into the Basin at

a more economical cost.” Preliminary Exemption Order, 2021

WL 41926, at *9. Further, the Board asserted that the Railway

“would enhance competition by providing shippers in the area

with a freight rail option that does not currently exist and foster

sound economic conditions in transportation.” Id. It explained

that the exemption would meet the remaining policies related

to minimizing federal regulatory control and reducing

regulatory barriers “by minimizing the time and administrative

expense associated with the construction and commencement

of operations.” Id. In the Final Exemption Order, the Board

reiterated these points and added that it “c[ould] grant the

Coalition’s request for authority even if all issues involving

financing [were] not yet resolved because the grant of authority

is permissive, not mandatory, and the ultimate decision on

whether to proceed will be in the hands of the Coalition and the

marketplace, not the Board.” Final Exemption Order, 2021

WL 5960905, at *23. With this assessment, the Board

ultimately found that “the transportation merits of the project

outweigh[ed] the environmental impacts.” Id. at *24.

The second set of Rail Policies were addressed in the Final

Exemption Order and could be described as “environmental”

policies. These include “operat[ing] transportation facilities

and equipment without detriment to the public health and

56

safety,” 49 U.S.C. § 10101(8), and “encourag[ing] . . . safe and

suitable working conditions in the railroad industry,”

id. § 10101(11). The Board “consider[ed] and weigh[ed] the

information collected during the NEPA process to inform [the]

agency’s” consideration of these policies. Board Br. 75. In

addition, the Final Exemption Order recognized objections

made during the administrative proceedings related to the

environmental policies, specifically “potential safety risks

related to wildfires and increased truck traffic.” Id. at 72. The

Board provided that the “OEA . . . demonstrated in its Final

EIS that there only would be a small risk of forest fire,” Final

Exemption Order, 2021 WL 5960905, at *24, and “included

extensive examination of potential increases in safety risks

related to wildfires and increased vehicular traffic,” Board Br.

74 (citing J.A. 875–93, 963–65, 991–92). The Board contends

that it “reasonably found that §§ 10101(8) & (11) did not

warrant denying the exemption, as the increased wildfire and

truck traffic risks were small and would be lessened by Board-

imposed mitigation.” Id. (citing Final Exemption Order, 2021

WL 5960905, *22–24).

In sum, the Board determined that “the construction and

operation of [the Railway] will have substantial transportation

and economic benefits” that outweigh the environmental

impacts. Final Exemption Order, 2021 WL 5960905, at *23. It

described the environmental impacts as “unavoidable” “as with

most other rail construction Projects” but subject to extensive

mitigation that would “minimize those impacts to the extent

practicable.” Id. at *23.

Petitioners lodge several objections.

First, the County claims that the Board departed from its

prior precedent in granting the Coalition’s request for

preliminary exemption contingent upon a later determination

57

of the environmental issues. It notes that the Board’s precedent

requires a showing of “unique or compelling” circumstances in

order to issue a preliminary decision on the transportation

merits of a petition prior to completing its environmental

review, but here the Board only offered “vague, unsupported

references to the ‘economic circumstances’ or the ‘pandemic.’”

Cnty. Br. 18.

The County also contends that the Board failed to consider

all of the relevant environmental Rail Policies, including the

policy of “encourag[ing] and promot[ing] energy

conservation,” 49 U.S.C § 10101(14), and arbitrarily relied on

the ones it did consider. Among other things, the County

asserts that the Board ignored “substantial record evidence

demonstrating that the Railway is economically unsound,”

highlighting “the Coalition’s own redacted study that

questioned the stability of oil markets, the market for Uinta oil,

and investor appetite for the Railway.” Cnty. Br. 25.

Finally, the Center states that the Board’s reliance on the

flawed EIS and BiOp resulted in a “skewed weighing of harms

and benefits,” Center Br. 47, noting that Board’s significant

discussion of the Railway’s “speculative economic benefits”

effectively glossed over the fact that the “benefits from

expanded oil production” necessarily result in significant

environmental harms, id. at 45.

2.

Regardless of the merit of the County’s argument that the

Board departed from its prior precedent in allowing conditional

grant of exemption on the transportation merits, we will not

address the Preliminary Exemption Order in its own right.

Petitioners’ varied objections as to the conditional grant

process apply in any event to the ultimate weighing employed

in the Final Exemption Order. We will instead review the

58

Board’s transportation merits analysis and the challenges to it

as incorporated into and reflected in its final determination.

The Board’s fundamental task here was to “properly

consider[] and appl[y]” the relevant Rail Policies in its

determination on the Coalition’s exemption petition. Coal

Exporters Ass’n, 745 F.2d at 94 n.22. It is clear from the Final

Exemption Order that the Board failed at every juncture.

First, the Board did not provide “adequate attention” to

comments questioning the financial viability of the Railway

and therefore did not properly consider the relevant economic

and regulatory policies. Illinois Com. Comm’n, 787 F.2d at

630. As the County highlights, the Coalition asked a third

party, R.L. Banks, “to prepare a detailed 2018 feasibility study

addressing the viability of the [Railway]” “prior to seeking

authority from the Board.” Preliminary Exemption Order,

2021 WL 41926, at *6. The Center obtained a redacted copy

of the feasibility study that it provided to the Board. See id.

The redacted copy apparently called into question “the demand

for the type of oil extracted from the Uinta Basin” and the

financial viability of the Railway overall. Id. at *15 (Oberman,

Bd. Mbr., dissenting).

The Board did not address the Center’s objection that the

redacted material from the study was needed to gauge the

economic viability of the Railway. Instead, the Board

explained that “nothing in the language of § 10502 . . .

suggest[s] that an exemption proceeding is inappropriate if the

viability of the proposed rail line is questioned.” Preliminary

Exemption Order, 2021 WL 41926, at *6 (citing Alaska

Survival v. STB, 705 F.3d 1073, 1082 (9th Cir. 2013)

(“[N]either § 10502 nor the STB’s implementing regulations

indicate that an exemption proceeding is improper when the

project’s financial viability is questioned.”)). It also provided

59

“that the ultimate decision to go forward with an approved

project is in the hands of the applicant and the financial

marketplace, not the agency.” Id. (citing Mid States Coal. for

Progress v. STB, 345 F.3d 520, 552 (8th Cir. 2003)). For these

reasons, the Board determined that it “[did] not need the

material currently redacted in the R.L. Banks 2018 feasibility

study obtained by the Center, despite the Center’s claim to the

contrary.” Id. at *7 n.8.

The Board’s argument is essentially that the financial

viability of a project, specifically whether it can get upfront and

ongoing financing, does not implicate the Rail Policies, so the

Board does not need to address project viability or respond to

comments challenging it. This interpretation, however, runs

counter to the fourth and fifth Rail Policies relied on in the

Preliminary and Final Exemption Orders. As was raised in the

Center’s reply to the Coalition’s petition for exemption, it

would not “ensure the development and continuation of a

sound rail transportation system . . . to meet the needs of the

public,” 49 U.S.C.A. § 10101(4), “if the applicant were to start

construction but not be able to complete the project and provide

the proposed service” due to lack of financing, J.A. 300

(quoting Great Lakes Basin Transp., Inc.—Rail Const. &

Operation—In Rock Cnty., Wisc., Winnebago, Ogle, Lee,

Lasalle, Grundy, And Kankakee Cntys., Ill., and Lake, Porter,

and Laporte Cntys., Ind., S.T.B. Fin. Docket 35952, 2017 WL

3835978, at *4 (STB served Aug. 31, 2017)). The STB

decision referenced by the Center did not deal with an

exemption petition but rather a full application under 49 U.S.C.

§ 10901, but this reasoning still has force when considering the

language of the fourth and fifth Rail Policies.

Despite its protestations to the contrary, the Board cannot

ignore and, in the past, has not ignored serious concerns about

financial viability in determining the transportation merits of a

60

project. See, e.g., Texas Cent. R.R. & Infrastructure, Inc. &

Texas Cent. R.R., LLC-Petition for Exemption-Passenger Rail

Line Between Dallas & Houston, Tex., S.T.B. Fin. Docket

36025, 2020 WL 4036897, at *12 (STB served July 16, 2020).

In Texas Central Railroad, the Board required the full

application process after “significant questions had been

raised” about the financial viability of a project where the

estimated costs increased “from over $10 billion to over $20

billion (with one estimate over $30 billion).” Preliminary

Exemption Order, 2021 WL 41926, at *7. The Board

explained that the discrepancy was not adequately addressed

and there were “conflicting statements” on the “extent of

nonmarket funding sources.” Id.

The Board attempts to distinguish the Railway from Texas

Central and other matters in which it found the full application

process was necessary. It reiterates its categorical rule that “the

ultimate test of financial fitness is in the hands of the applicant

and marketplace” so uncertainty about financial viability is not

relevant to its determination. Id. at 7 n.10; see also Board Br.

77–78. In the Preliminary Exemption Order, the Board also

articulates a separate test of sorts to establish when an

exemption petition should be denied in light of a project’s

financial viability. It provides that when two factors—an

“increase in project costs or uncertainty about funding”—“are

both substantial and inadequately or inconsistently addressed,

combined with other relevant factors, including the extent to

which the marketplace will assess financial fitness, additional

scrutiny may be warranted.” Preliminary Exemption Order,

2021 WL 41926, at 7 n.10. But the Board insists that the there

was only “some uncertainty” as to the financing of the Railway,

so a full application process was unnecessary. Id. at *7–8.

The Board’s reasoning is unavailing. These tests are

nothing more than the adoption of a new rule without real

61

explanation for its “changing position.” Baltimore Gas & Elec.

Co. v. FERC, 954 F.3d 279, 286 (D.C. Cir. 2020). At bottom,

a project that is in doubt of ever materializing or continuing to

operate cannot accomplish any of the transportation merits

identified by the Board. And, the Board has applied that

reasoning in prior cases in which “[c]ommenters . . . have

raised significant questions surrounding the financial

feasibility of [a] proposed rail project.” Texas Cent., 2020 WL

4036897, at *12. Given the record evidence identified by

Petitioners—including the 2018 feasibility study—there is

similar reason to doubt the financial viability of the Railway.

Of course, our Court “may permit agency action to stand

without elaborate explanation where distinctions between the

case under review and the asserted precedent are so plain that

no inconsistency appears.” Bush-Quayle ‘92 Primary Comm.,

Inc. v. FEC, 104 F.3d 448, 454 (D.C. Cir. 1997). Here,

however, the Board fails to explain how the financial

uncertainty unearthed by Petitioners is meaningfully distinct

from the Board’s prior precedent. In both, significant questions

regarding the financial viability of the proposed project were

raised. Yet, in this latter case, the Board has elected to ignore

these concerns despite their application to the relevant Rail

Policies. Accordingly, the Board’s adoption of this new rule of

washing its hands of any concern for financial viability is “an

inexcusable departure from the essential requirement of

reasoned decision making.” Ramaprakash v. FAA, 346 F.3d

1121, 1125 (D.C. Cir. 2003) (quoting Columbia Broad. Sys.,

Inc. v. FCC, 454 F.2d 1018, 1027 (D.C. Cir. 1971)).

Second, with respect to its consideration of the

environmental policies, the Board relies solely on its EIS. See

Final Exemption Order, 2021 WL 5960905, at *22. As we

have held, the EIS is arbitrary and capricious, so those errors

infect the final determination as well. Even so, the Board’s

discussion of the environmental policies in the Final

62

Exemption Order separately demonstrate that the Board did not

adequately consider the incredibly significant environmental

effects identified in the EIS in weighing those impacts against

the uncertain transportation benefits of the Railway. The

“cumulative” effects within the Uinta Basin of a major

expansion of oil drilling there, on Gulf Coast communities of

refining the oil, and the climate effects of the combustion of the

fuel intended to be extracted are foreseeable environmental

effects of the project. These are effects the Board ultimately

has the authority to prevent. The Board was required not only

to identify those effects under NEPA, as discussed above, but

also to weigh them in its ICCT Act analysis. Its failure to do

so contributes to our conclusion that the Board’s order is

arbitrary and capricious.

As an initial matter, the Center has failed here, just as it

failed under NEPA, to show that consideration of downstream

emissions as cumulative versus indirect effects itself skewed

the Board’s analysis in any material way under the ICCT Act.

In its final order, the Board acknowledged these impacts and

explained “that its analysis of these impacts would be the same

whether they were labeled cumulative or indirect.” Final

Exemption Order, 2021 WL 5960905, at *18 n.15. Taking the

Board at its word that its treatment of downstream emissions in

its Final Determination is no different due to their

categorization as “cumulative effects” instead of “indirect

effects,” the Board was required to weigh them as cumulative

effects just as it would weigh any indirect effect of the project.

The Board largely concedes in its briefing that it did not

evaluate the energy conservation policy, providing that it

“addressed numerous energy-related issues throughout” but

not this particular policy. Board Br. 77. 2 The Court, however,

2

The Board claims that the County did not timely raise its objection

related to the Board’s failure to consider the energy conservation

63

can only uphold the agency’s action “on the basis articulated

by the agency itself,” State Farm, 463 U.S. at 50, and “may

not substitute [its] judgment for that of the [Board],” Dep’t of

Com. v. New York, 139 S. Ct. 2551, 2569 (2019). This,

however, is exactly what the Board asks of the Court. Based

on its nebulous references in the record to “potential issues

related to energy,” Board Br. 77, we should apparently create

from whole cloth a reasoned consideration of the energy

conservation policy. This we cannot do.

The limited weighing of the other environmental policies

the Board did undertake fails to demonstrate any serious

grappling with the significant potential for environmental harm

stemming from the project. The Final Exemption Order

completely glossed over the objection that “the project’s many

significant environmental impacts” necessitated additional

scrutiny and “more extensive proceedings.” Final Exemption

Order, 2021 WL 5960905, at *23. Instead, its “weighing” of

environmental impacts and transportation merits only directly

references the EIS to claim that “there only would be a small

policy. See Board Br. 75–77. Generally, “reviewing courts . . . will

not consider an argument that was not raised before the agency ‘at

the time appropriate under its practice.’” Riffin v. STB, 733 F.3d 340,

343 (D.C. Cir. 2013) (citing United States v. L. A. Tucker Truck

Lines, Inc., 344 U.S. 33, 37 (1952)). While the County did not raise

this issue in a formal objection to the Coalition’s exemption petition,

it did provide this specific objection in response to the Draft EIS,

specifically asserting that the Railway’s “consequences will likely

also detract rather than encourage and promote energy

conservation.” J.A. 760. Raising this objection when the Board said

it would consider environmental impacts is a “time appropriate under

[the Board’s] practice.” Riffin, 733 F.3d at 343. Since the Board had

the “opportunity for correction,” the County did not forfeit this

objection and this issue can be considered “reviewable by the

[C]ourt[].” Id. (citing L. A. Tucker, 344 U.S. at 37).

64

risk of forest fire” and “truck traffic would not significantly

increase on major roads as a result of construction and

operation of the [Railway].” Id. at *24. Otherwise, the Board

hurriedly disposed of Petitioners’ environmental objections

with assertions that the mitigation discussed in the Final EIS

was sufficient and that the Board modified certain mitigation

measures to ensure clarity. Id. at *24–25. With this paltry

discussion, the Board determined that “the transportation

merits of the project outweigh[ed] the environmental impacts.”

Id. at *24.

The Board is required to compare both sides of the ledger,

not just acknowledge that both sides exist. And it may not

completely ignore a “policy bearing on the propriety of the

exemption” as it did here with the energy conservation policy.

Illinois Com. Comm’n, 787 F.2d at 627. As the Board

identified, on one side of the scale the Railway could result in

nearly one percent of total U.S. greenhouse gas emissions and

the increased rail traffic downline could cause amplified risk of

wildfires, the potential of derailed trains on an annual basis, and

crude oil spills in critical habitats and sensitive water resources

that are home to endangered species. On the other side, the

Railway may open up new markets for crude oil transportation,

assuming the project is financially viable—an assumption that

is not clear from this record. The Board’s consideration of

these impacts and benefits was cursory at best, leaving little

question that the ICCT Act necessitated a more fulsome

explanation for the Board’s conclusion that the Railway’s

transportation benefits outweighed the project’s environmental

impacts.

It is not our job to decide whether the Board ultimately

arrived at the right outcome in light of its findings. See State

Farm, 463 U.S. at 43 (“The scope of review under the ‘arbitrary

and capricious’ standard is narrow and a court is not to

65

substitute its judgment for that of the agency.”). However, it is

clear that the Board failed to adequately consider the Rail

Policies and “articulate a satisfactory explanation for its action

including a rational connection between the facts found and the

choice made.” Id. (quotation marks omitted). The Board’s

protestations at argument that it is just a “transportation

agency” and therefore cannot allow the reasonably foreseeable

environmental impacts of a proposed rail line to influence its

ultimate determination, see Oral Arg. Tr. 84:19–20; 85:20,

ignore Congress’s command that it make expert and reasoned

judgments that “properly consider[] and appl[y]” the relevant

Rail Policies prior to granting an exemption from its full

application requirements, Coal Exporters Ass’n, 745 F.2d at 94

n.22. Here, those Rail Policies include the environmental

impacts of the Railway, and the Board failed to fulfill its

obligation under the ICCT Act to consider them alongside any

potential economic benefits.

The Board failed to “supply an acceptable rationale” as to

its consideration of the relevant Rail Policies and therefore the

Final Exemption Order was issued in violation of the ICCT

Act. Illinois Com. Comm’n, 787 F.2d at 627.

IV.

We are left to consider the remedy. “The decision to

vacate depends on two factors: the likelihood that

‘deficiencies’ in an order can be redressed on remand, even if

the agency reaches the same result, and the ‘disruptive

consequences’ of vacatur.” Black Oak Energy, LLC v. FERC,

725 F.3d 230, 244 (D.C. Cir. 2013) (quoting Allied-Signal, Inc.

v. U.S. Nuclear Regul. Comm’n, 988 F.2d 146, 150–51 (D.C.

Cir. 1993)).

The deficiencies here are significant. We have found

numerous NEPA violations arising from the EIS, including the

66

failures to: (1) quantify reasonably foreseeable upstream and

downstream impacts on vegetation and special-status species

of increased drilling in the Uinta Basin and increased oil-train

traffic along the Union Pacific Line, as well as the effects of oil

refining on environmental justice communities the Gulf Coast;

(2) take a hard look at wildfire risk as well as impacts on water

resources downline; and (3) explain the lack of available

information on local accident risk in accordance with 40 C.F.R.

§ 1502.22(b) (2020). The EIS is further called into question

since the BiOp failed to assess impacts on the Colorado River

fishes downline.

The poor environmental review alone renders arbitrary the

Board’s consideration of the relevant Rail Policies and the final

order’s exemption of the Railway. Yet, the Board also failed

to conduct a reasoned application of the appropriate Rail

Policies as required under the ICCT Act. The Board failed to

weigh the Project’s uncertain financial viability and the full

potential for environmental harm against the transportation

benefits it identified.

“‘[V]acatur is the normal remedy’ when a rule is found

unlawful,” and we see no reason to depart from our normal

practice here given the lack of argument from the Board,

Service, or the Coalition, that vacatur would be disruptive. Am.

Pub. Gas Ass’n v. Dep’t of Energy, 22 F.4th 1018, 1030 (D.C.

Cir. 2022) (quoting Allina Health Servs. v. Sebelius, 746 F.3d

1102, 1110 (D.C. Cir. 2014)).

Accordingly, we grant the petitions in part and vacate the

Final Exemption Order as arbitrary and capricious. Further, we

vacate the EIS and BiOp in part for the reasons described

above. This matter is remanded to the Board for further

proceedings in accordance with this opinion.

So ordered.